“You want to make a soldier cry, you take his son away,” McNeilly, 33, of Grand Ledge, told the Lansing State Journal for a Sunday story. “It’s devastating.”

The boy’s mother, her lawyer and the Ingham County Friend of the Court disagree, saying McNeilly didn’t lose custody because of his deployment. But McNeilly is getting some support in the custody dispute.

“He would still have his son if he hadn’t been deployed,” said Maj. Dawn Dancer, public affairs officer for the Michigan National Guard.

Don Reisig, director of the Ingham County Friend of the Court, said confidentiality laws bar him from saying much. He said the court’s recommendation in May had nothing to do with McNeilly’s military service.

But a report from a court hearing said the court favored Joey’s mother, Holly Erb of Mason, because she was the “day to day caretaker and decision maker in the child’s life” while McNeilly was deployed.

Erb’s lawyer, Theresa Sheets of Lansing, said Erb wanted full custody because she no longer found McNeilly to be a fit father.

“This has absolutely nothing to do with his military service,” Sheets said.

McNeilly had shared custody of Joey, his only child, before being deployed in 2004. But Erb had petitioned the court for full custody seven months after McNeilly joined the National Guard in 2003.

McNeilly agreed to give Erb temporary full custody until he returned from duty. A custody order said the issue would be revisited when McNeilly returned from Iraq, but a court referee recommended against restoring custody.

The case has prompted state Rep. Rick Jones, R-Grand Ledge, to begin work on legislation aimed at barring courts from using soldiers’ absences for active duty against them in custody hearings.