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December 03, 2020

Special Family Law Considerations

The SCRA can come into play in family law matters. You should understand how the SCRA can arise, and make sure to talk with a military legal assistance attorney if you become involved in a family law case.

I am involved in a court case with my former spouse, and there are issues of how custody of our child is going to be determined and how much child support I am going to pay. Do any of the protections of the SCRA apply to my family law case?

Yes. The SCRA applies to “all civil actions,” and this includes family law matters. The SCRA makes it clear that protections against the entry of court orders in the absence of the military parent and the right to put court cases on hold while a military parent is unavailable apply in child custody matters. Decisions about who is the custodian of your child and how much child support you may have to pay are very serious decisions that a court can make, so the SCRA ensures that if your military service interferes with you being involved in that decision process, you should be accommodated by the court to be fully heard on these matters. You should also keep in mind however that not supporting your family is a crime under military law; and you are paid additional allowances for the support of your family while on active duty. Since calculating child support in most states is largely an arithmetic problem, you should carefully consider whether to request a stay in a support hearing that might result in a substantial arrearage being imposed upon you by the court later.

Family law issues, like divorce, paternity, child support, and custody, are decided under state law. Every state makes these laws individually, so there can be variation from state-to-state. If you are stationed in Texas and have been served with a family law case filed in Florida, a Texas attorney may not be able to help you and you will have to find a family law lawyer in Florida who understands the law there. That said, the SCRA is a federal law, and so the protections in that law apply to civil actions throughout the United States.

Many states have their own laws regarding how child custody cases should be handled for servicemembers. These state-based laws can add to the protections already available under the SCRA. Not every state has adopted these military-specific laws, and they vary from state to state, but there are some common protections that could be available in these states, such as:

  • No permanent orders altering existing custody arrangements are to be entered while the custodial parent is unavailable due to military service.
  • Neither past nor possible future absences due to military service should serve as the sole basis for altering a custody order in place before the absence.
  • Reinstatement of the custody order in place before the absence of a military parent within a set time upon the return of the military parent without proof that it undermines the best interests of the child. The parent who has not been deployed bear the burden of proof.
  • Allowing a servicemember with visitation rights to petition the court to allow those visitation rights to be delegated to a third person, such as grandparents or new spouse, during the servicemember’s absence due to military service.

Allowing for (a) expedited hearings upon the request of a servicemember, and (b) the use of electronic testimony when the servicemember is unavailable.

Family law matters can be very complicated, so you are strongly encouraged to talk to a lawyer if you become involved in a family law case. You should start with your military legal assistance office, where you can get general family law advice and advice on how the SCRA can help you. But be aware that the military lawyer may not know the law of the state where you have your family law case, and you may need to talk to a civilian attorney in that state to get specific advice.

I have custody of my child. I am going to be deployed overseas and would like my child to live with my parents instead of with his other parent. Does the SCRA allow me to do this?

The SCRA does not say anything about who will be the custodian of a child in the event of a deployment. If you have a court order of custody, that order might define specifically what happens to the child in the event you deploy. If that is the case, then you have to either follow the order or go to court prior to your deployment to try to get the order changed. If your court order does not say what happens to the child in the event of a deployment—or if you don’t have a court order at all—then you need to create a military Family Care Plan, which will say where the child will stay while you’re gone. Department of Defense regulations require you, to the greatest extent possible, at least consult with the other parent as you prepare the Family Care Plan to reach an agreement on arrangements for your child and if not leaving the child with the other parent, to obtain the other parent’s agreement to that plan.

The bottom line is that there may be conflict with the other parent on the custodial arrangement for your child upon your deployment, regardless of whether you have a court order or Family Care Plan. You should speak with a military legal assistance attorney for advice before you deploy, especially if you anticipate that a court action will occur before or during your deployment. Some SCRA procedural protections may be available to you in that situation; but a Family Care Plan is not a custody order and if you created a family care plan that conflicts with a custody order, you should be cautious in asserting your SCRA rights.