Love For Vets

A Family Court properly granted primary physical custody of a child to his father after the mother went through a period of absence and upheaval starting with her tour of duty in Iraq, an upstate appeals court has determined.

Tanya Towne's stint in Iraq in 2004 and 2005 was validly considered as part of a sequence of events that resulted in her former husband, Richard S. Diffin Jr., gaining primary physical custody of their son, an Appellate Division, Third Department, panel concluded last week.

"The fact remains that the mother was deployed and, while we do not hold that her deployment in and of itself constitutes a significant change in circumstances, we must consider the consequences of her extended absence in determining whether such a change exists," Presiding Justice Anthony V. Cardona wrote for the unanimous court in Diffin v. Towne, 502429.

The decision will be published Thursday.

Before her deployment by the Army National Guard, Ms. Towne had primary physical custody of the son, Derrell, who was born in 1995. Ms. Towne and the boy were living at the home of Ms. Towne's second husband, Jason Towne, with whom she had had a second son. Ms. Towne wanted Derrell to live with Mr. Towne and her other son, but Mr. Diffin secured a temporary custody order to have Derrell live with him in Virginia while Ms. Towne was in Iraq.

When Ms. Towne petitioned Family Court in Montgomery County for restoration of the original custody arrangement upon her return from Iraq late in 2005, Mr. Diffin contested it. In addition to the separation caused by Ms. Towne's tour of duty, Mr. Diffin noted that Ms. Towne separated from Mr. Towne when she returned to the United States and moved out of the home where Derrell lived when Ms. Towne had primary physical custody of the boy.

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