GPSOLO September 2009
Individual Rights & Responsibilities
Child Custody and the SCRA: My Child or My Country?
Many soldiers often falsely believe that the stay of proceeding provisions of the Servicemembers Civil Relief Act (SCRA) will give them temporary, automatic protection from legal proceedings while they are on active duty. They think that if the other parent files a petition to modify custody while they are deployed, courts must put the matter on hold until the soldier returns from duty, thereby preventing custodial changes. Too often soldiers face the conse-quences of this misconception after they are already on foreign soil.
What does the law really say? As it relates to family law, one of the most important and most utilized provi-sions of the SCRA is the ability of the service member or the court to stay any pending proceedings under Sections 521 or 522 until the service member is available to appear. But a service member must understand that neither Sec-tion 521 nor Section 522 provides a type of sovereign immunity as it relates to his or her legal obligation. The provi-sions that address the stay of a pending proceeding were enacted merely to keep legal proceedings “at bay” while a service member defends his or her country. A stay of a pending proceeding is equivalent to a delay or temporary suspension that may last for months or years, depending on the circumstances. The stay will normally be lifted once the court has determined that the material effect upon the service member—usually deployment—has been removed.
How does the stay of proceedings work? The statutory requirements differ depending upon whether the service member has actual notice of the proceeding, as indicated by making an appearance at any time following the com-mencement of the proceeding. If the service member has not made such an appearance, Section 521 applies. Under Section 521, the court must first determine the military status of the absent party. Once that has been confirmed, a mandatory minimum 90-day stay of the proceeding will be granted upon a motion by the absent service member’s appointed attorney or on the court’s own motion if the court determines that (1) there may be a defense to the action, and that defense cannot be presented without the presence of the service member; or (2) after due diligence, counsel for the defendant service member has been unable to contact the defendant or otherwise determine if any other meri-torious defense exists. The requirements under Section 521 are significantly less stringent than if the service member has actual notice of the proceeding.
Conversely, Section 522 applies if the service member has actual notice and, as a result of that notice, has made an appearance in the case, is currently in the military or within 90 days after termination of military service, and has filed an application for a stay of proceedings. The court, upon its own motion, may enter the stay or shall enter the stay upon the motion of the service member if that motion includes (1) a written correspondence or other communi-cation from the service member setting forth how the service member’s current military duties materially affect his or her ability to appear, and that correspondence from the service member must state a date when the service mem-ber will be able to appear; and (2) additional correspondence or other communication from the service member’s commanding officer stating that the current military duty does prevent the service member’s appearance, and mili-tary leave is not authorized for the service member at the time the commanding officer’s correspondence was or will be presented to support the motion.
How would a stay affect the type of custody? Although active duty soldiers have the protections provided un-der a stay, a civilian parent is nonetheless afforded the services of the judicial system. Thus, that parent may file a complaint for custody or a motion to modify custody at any time, even during the soldier’s deployment.
Because a custody action may be filed at any time, an active-duty soldier who has primary physical custody of a child may return home only to find that he or she has lost that custody because the court has determined that since deployment the best interest and welfare of the child has been established with the other parent. Further, owing partly to the protections afforded to natural parents under the Due Process Clause of the Fourteenth Amendment, many courts are entering temporary custody orders, finding that because the order is of a temporary nature, the ser-vice member’s presence is not necessary—and hence that no fundamental right of that parent has been materially affected by entering it. The length of the soldier’s deployment very often is a critical factor as to whether he or she will retain the primary physical custody of the child after the expiration of the assignment. Counsel for the soldier should assume that opposing counsel has a working knowledge of the SCRA and may make several strong argu-ments against a stay being entered, such as (1) the elements of a valid 90-day stay have not been met, (2) the service member’s leave and earning statement indicates that he or she has accrued sufficient time to be present, (3) the ser-vice member’s absence is one of convenience rather than military necessity, or (4) the alleged unavailability may be cured by electronic means (i.e., via telephone, video teleconferencing, or the Internet).
Judicial discretion regarding the child’s best interests. As the natural parents of the child, both the soldier and the civilian are a protected class under the Due Process Clause of the Fourteenth Amendment, which means that neither parent has a superior right to the custody of the child unless such a right has been established in a court of law. So a soldier must understand two things. First, his or her deployment will not serve as a justification for an ef-fect on the protected rights of the other parent or what the court deems as the best interest of the child. Unless the court determines that the other parent is unfit or has neglected the welfare of the child, more likely than not the other parent will obtain more than visitation with the child during, and possibly after, deployment. Thus, granting a stay of a custody proceeding may not automatically prevent an award of temporary custody to the other parent. Second, a soldier’s wishes or request that a third party retain primary physical custody of the child under a family care plan will not be deemed as superior to the rights of the other parent unless it can be proven that the other parent is unfit.
What soldiers should do before deployment. A soldier should make sure that his or her counsel is well versed in the benefits and detriments of the potential application of the SCRA to his or her specific situation. Parties should strive to negotiate a consent order rather than litigating the issue and deferring the decision to a judge. In an ideal situation, the child custody order should be drafted in anticipation of deployment or mobilization and should address the service member reuniting with the child at the end of the military assignment. A very detailed finding of facts should address circumstances such as the home state of the child and the current custody arrangement with respect to, and without limitation to, the education and housing of the child. Although the above-mentioned pointers can help alleviate many major custody issues facing service members, no one can predict the potential problems that may occur with negotiated temporary orders. Thus many states have drafted—or are currently drafting—legislation that will prevent service members from having to make a choice between their country and their children.
FOR MORE INFORMATION ABOUT THE SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES
- This article is an abridged and edited version of one that originally appeared on page 10 of Human Rights, Spring 2008 (35:2).
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Nakia C. Davis is an assistant clinical professor of the Family Law Clinic and the General Externship Program at North Caro-lina Central University School of Law in Durham, North Carolina. She may be reached at firstname.lastname@example.org.