A Canajoharie woman who lost custody of her son while she was on military duty in Iraq lost her appeal and won’t be getting her son back.
In a decision on Thursday, the Appellate Division of state Supreme Court sided with Richard S. Diffin Jr. of Virginia, the former husband of Tanya Towne who filed for custody of their son while Towne was being sent to war in 2004.
Towne learned about the latest decision Thursday and said she was upset and in shock.
She said the courts might rule differently if they heard her son crying on the telephone from hundreds of miles away.
Diffin could not be reached for comment Thursday.
Towne and Diffin had joint legal custody of their son, Derrell, who Towne raised to age 8 with primary physical custody of the boy. Derrell is almost 12 years old now.
Derrell lived with Towne and her new husband until she was sent to Iraq with her National Guard unit. When Diffin learned that Towne was scheduled for overseas duty, he petitioned the court for custody of the boy, according to court papers.
Towne wanted her son to stay in Canajoharie with her extended family, including her new husband and Derrell’s younger sibling, hoping to maintain the stability of his existing living situation.
State and federal laws protect soldiers from court action while they’re deployed, so the local Family Court judge, Philip Cortese, postponed court action on Diffin’s request for custody.
But Cortese issued a temporary order granting custody of Derrell to Diffin in Virginia, saying that it was best that the child be with the remaining biological parent, according to court papers.
When Towne returned in October 2005, she petitioned the Family Court to reinstate the original custody arrangement while Diffin argued for primary physical custody. The court then granted Diffin physical custody.
Towne, through her attorney William E. Lorman, appealed the decision to the appellate division.
Lorman was out of the country Thursday and could not be reached for comment, according to a secretary at his Amsterdam office.
In its decision, the appellate court states that Towne and Diffin are “both excellent parents.”
“Both have demonstrated stable employment, adequate income, suitable homes, and an unwavering commitment to Derrell’s well-being,” the decision states.
But the court ultimately decided that sending Derrell back to Towne would not serve the boy’s best interests.
“His interests are best served by the stability of an uninterrupted custody arrangement,” the ruling states.
Towne on Thursday said she intends to write letters to governmental representatives, talk show host Oprah Winfrey and anybody else that could help her.
“I’m not going to stop, I’m going to do whatever I can do. I don’t know what the courts are thinking,” she said.