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April 01, 2008

Child Custody and the SCRA: My Child or My Country

by Nakia C. Davis

I am not an avid newspaper reader, preferring to be informed about the state of affairs by watching the CBS Evening News. However, I was recently drawn to a photograph in a newspaper of a teary-eyed American solider holding on to her child as if for dear life. The accompanying article told the story of a soldier, returning early from her deployment in Iraq, preparing to wage a “custody battle” stateside with her child’s civilian father.

Before deployment, the soldier had done everything she thought necessary to protect her rights. She had obtained an order granting her primary physical custody, she had completed a family care plan, and she had arranged for temporary placement of the child with her mother during her deployment. What she had not anticipated was the civilian father waiting until her deployment to petition the court to modify the custody order, citing a “substantial change in circumstances.” She wondered how this could this happen when her child’s father had rarely even exercised the visitation rights he already had.

This soldier’s predicament is not unique. Thousands face the heart-wrenching dilemma of involuntarily losing primary custody of their children as a result of their service to our country. This particular soldier was one of the very fortunate few who make it back to the States to present their cases to the courts. But her story raises larger questions. How can soldiers defend their rights from abroad? If soldiers lose primary custody while fighting for their country, what happens when they return home? Further, is it really right for us to expect our soldiers to fight two wars at the same time—one foreign, for their nation, and one domestic, for their children?

American civilians are surprised to learn what our soldiers face on the home front. Indeed, even many soldiers are surprised when they encounter such a situation. They often falsely believe that the stay of proceeding provisions of the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. §§ 521 and 522, will give them temporary, automatic protection from such legal proceedings while they are on active duty. Many soldiers think that if the other parent files such a petition while they are deployed, courts must put the matter on hold until the soldier returns from duty, thereby preventing custodial changes. Too often they face the consequences of this misconception, after they are already on foreign soil.

What Does the Law Really Say?

The drafters of the SCRA understood that it may be next to impossible for a solider to participate in a legal proceeding while defending our country. The stated purposes of the SCRA are “to provide for, strengthen, and expedite the national defense by enabling servicemembers to devote their entire energy to the defense needs of the United States of America as well as to provide for the temporary suspension of judicial and administrative proceedings that may adversely affect the civil rights of servicemembers during their military service.”

What are Sections 521 and 522 supposed to do? As it relates to family law, one of the most important and most utilized provisions of the SCRA is the ability of the service member or the court, on its own motion, to stay any pending proceedings under Sections 521 or 522 until the service member is available to appear in court. For an attorney representing a service member under either provision, it is important to note that a stay request does not subject the service member to the court’s jurisdiction nor does it constitute a waiver of any substantive or procedural defense. A service member must understand that neither Section 521 nor Section 522 provides a type of sovereign immunity as it relates to his or her legal obligation. The provisions that address the stay of a pending proceeding were enacted 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. Thus, additional stays may continue to be requested and will be granted so long as the service member can show that his or her ability to appear continues to be affected by his or her active duty status.

How does the stay of proceedings work? The statutory requirements differ depending upon whether the service member has actual notice of the proceeding. The service member has actual notice if he or she made an appearance at any time following the commencement of the proceeding. For example, an appearance has been made if at any time during the proceeding the service member filed a complaint, if he or she were the plaintiff, filed an answer, if he or she were the defendant, or served or responded to any motions, or appeared in person at any time. If the service member has not made such an appearance, Section 521 applies. Normally, the provision is applied in cases where the service member is the defendant, he or she has not made an appearance due to his or her active duty status, and the plaintiff is requesting “any judgment, decree, order or ruling, final or temporary” in his or her favor. In January 2008, Congress passed the 2008 National Defense Authorization Act, which emphasized that custody actions are deemed as default cases where the service member has not made an appearance in the case and in those cases involving a request for an initial stay.

Under Section 521, the court must first determine the military status of the absent party. Once that has been confirmed, a mandatory minimum ninety-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 meritorious 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 ninety 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 communication 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 member 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 military 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 a legal proceeding may be delayed due to a motion to stay proceedings being granted, the purported facts and circumstances at issue constantly evolve, especially in family law cases and specifically in custody cases, where matters commonly may take years before a permanent order is entered. The purported facts may work to a soldier’s benefit or detriment. Why? Because the welfare of a child is established on a daily basis, by either a natural parent or a third party, and the welfare of the child is the court’s primary focus, not the soldier’s inability to appear due to his or her active duty status. Although active duty soldiers have the protections provided under 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. Sadly, a large number of pleadings are filed strategically by civilians during the deployment of soldiers. Nothing can be done to prevent any such filing that addresses the best interest and welfare of a child, whether the action was brought in good faith or ill will. That intent question will only be addressed once the issue has been brought to the court’s attention.

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, due 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 since the order is of a temporary nature, the service 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. If the child is thriving in his or her new environment, the court will be very reluctant to remove the child from the present living arrangement. Thus, it is not a good practice for a service member to request a stay instantaneously merely because it is available or specifically to delay dealing with the other parent and the court system because they represent inconveniences that the soldier would just like to put off as long as possible. If the soldier can return, it would be in his or her best interest to do so. Also, as pointed out by Mark Sullivan, an experienced family law practitioner who often works with military personnel and their spouses, counsel for the soldier should assume that opposing counsel has a working knowledge of the SCRA and may make several strong arguments against a stay being entered, such as (1) the elements of a valid ninety-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 service member’s absence is one of convenience rather than military necessity (i.e., deployment to a foreign country versus mobilization out of state), or (4) the alleged unavailability may be cured by electronic means (i.e., via telephone, video teleconferencing, or the Internet). See Mark E. Sullivan , Family Law and the Servicemembers Civil Relief Act: An Outline 6, at; see generally MARK E. SULLIVAN, THE MILITARY DIVORCE HANDBOOK: A PRACTICAL GUIDE TO REPRESENTING MILITARY PERSONNEL AND THEIR FAMILIES (ABA Section of Family Law 2006).

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 their child unless such a right has been established in a court of law. This constitutional right afforded to the natural parents of a child is superior to any third party acting as the physical and/or legal custodian. As it relates to child custody cases, the third party is normally a relative that has an established substantial relationship with the child, such as a grandparent. So a soldier must understand two things. First, his or her deployment will not serve as a justification for an effect 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 in relation to state law, more likely than not the other parent will obtain more than visitation with the child during, and possibly after, deployment. Thus, a stay of a custody proceeding granted under Sections 521 and 522 may not automatically prevent an award of temporary custody to the other parent because judges and attorneys for both service members and civilians are troubled that a stay can be entered in cases involving domestic/family law issues when such issues are usually seen as urgent, requiring immediate judicial decisions. 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.

Although child custody actions are not exempt from the stay of proceedings under the SCRA, a trial judge must also balance the constitutional rights of both the soldier and civilian along with what is in the best interest of the child. While courts usually will take the desires of each parent under careful advisement, the opposing desires of parents will not take priority over what will actually promote the best interest and welfare of the child. Courts understand that each parent’s view of what is in his or her child’s best interest may vary greatly due to that parent’s life experiences and other influences. Thus, a judge is given substantial discretion when making a determination as to the best interest of the child. Because of this judicial leeway, a decision is often difficult. Unfortunately, no provisions under the SCRA can balance the rights of the parents with the best interest of the child without making the soldier feel that he or she is being penalized because of deployment. However, instead of penalization, a court may view deployment as an unfortunate circumstance. And in an effort to acknowledge and accommodate the soldier’s current involuntary position, the SCRA is applied liberally. Such a liberal application may result in the service member having more time to prepare a fuller exploration of the issues alleged in the pleading, providing more testimony and evidence before the court.

Movement on the Legislative Front

Because there is not a legal scale that equally balances the interests of all involved, one may conclude that the SCRA does not work to the benefit of the service member as it relates to a proceeding on the issue of custody if a temporary custody order will supersede the authority given under the SCRA and a family care plan. Unfortunately, because the SCRA does not specifically address the domestic/family law context, lawmakers would likely be tip-toeing atop a slippery slope if specific family law amendments were attached to the provisions of the SCRA. If this area of the law were addressed via amendment, all others must likewise be handled with the same type of specificity, and frankly, that would be a nightmare.

Currently, limited discussion has taken place regarding how the SCRA might be amended in a way that would provide the soldier with additional protection as it relates to child custody and still pass constitutional muster. However, advocates for additional protection for soldiers in relation to child custody and visitation are fighting across this country through newly enacted state laws. For example, in July 2007 North Carolina, which has the country’s fourth largest military population, enacted legislation that protects the soldier as well as their children from the disruptions that naturally occur when the soldier is deployed or assigned to temporary duty in a distant location. N.C. GEN. STAT. § 50-13.7A.

What Soldiers Should Do Before Deployment

A fair number of states are addressing these family law issues because of the long deployments of soldiers in Iraq and Afghanistan. Nonetheless, soldiers still must be extremely cautious in retaining counsel because their deployment or mobilization status puts them in a position to have more to lose. Thus, 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. If the solider is not comfortable with the lawyer’s knowledge of the SCRA, he or she should seek a second opinion. As a precautionary measure, if deployment is even a slight possibility, soldier parents should take the time to research the attorneys who are well versed in this area of the law. Likewise, any active duty service member should attempt to prepare wisely for deployment or mobilization by securing a temporary custody order that addresses the best interest and welfare of his or her child(ren). Parties should strive to negotiate a consent order rather than litigating the issue and deferring the decision to a judge. As mentioned above, a service member’s desire for the primary physical custody of his or her child to be placed with a third party under a family care plan will not prevail over a natural, civilian parent’s right to obtain the primary physical custody of the child so long as the natural parent was not deemed unfit by the court. 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, the education and housing of the child. Such findings would possibly prevent the civilian, noncustodial parent, who may not want to return the child at the expiration of the assignment, from asserting that such aspects are grounds for a substantial change of circumstances in a motion to modify. Further, a well-drafted temporary custody order will reiterate that the order is temporary and provide that no substantial change in circumstances is necessary to return the child to the status quo when the service member returns. Nevertheless, while 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.

Nakia C. Davis

Nakia C. Davis is an assistant clinical professor of the Family Law Clinic and the General Externship Program at North Carolina Central University School of Law in Durham, North Carolina.