Protecting Child Custody for Military Servicemembers

 Posted on September 03, 2014 in Child Custody

The Soldiers' and Sailors' Civil Relief Act was passed at the start of World War II to provide legal protection to those serving in the military. Congress later passed the Servicemembers' Civil Relief Act (SCRA) in 2003 to update the original legislation in order to better reflect modern times.

SCRA law recognizes that servicemembers, like all other U.S. residents, may become involved in civil conflict or family law, often by filing for divorce or being served divorce papers. However, when legal conflict arises, it is particularly difficult for these servicemembers to protect their legal rights when they are involved in training, deployed on assignment, or otherwise required to focus all of their energies on national defense.

Given these considerations, SCRA requires state and federal court judges or judges in administrative proceedings to grant a "stay of proceedings," or postponement of the civil legal proceedings, until the servicemember becomes available to participate. This ensures the servicemember has an equal opportunity to develop and litigate his or her legal case.

Avoiding Adverse Ruling Before Proceedings Begin

In order to prevent the entrance of a default judgment or other adverse ruling against the military servicemember, before the servicemember makes an initial appearance in court, the adjudicator must investigate whether the individual is not present due to military service. The adjudicator can check into a possible servicemember's military role by consulting information provided by the U.S. Department of Defense.

Qualifying for a "Stay of Proceedings" after Proceedings Begin

In order to qualify for the stay of proceedings remedy, the servicemember must file a request stating that military service has a material effect on the servicemember's ability to defend him or herself in litigation. The statement should also include a suggested reschedule date and a confirming statement from the military servicemember's commanding officer. Case law interpretations of the SCRA, along with the Act's stated purpose, suggest that the terms should be construed liberally to protect servicemember's interests.

SCRA and Divorce Proceedings

SCRA may stay proceedings in family law matters such as divorce, child custody or paternity proceedings. A family law attorney may present a motion to request stay of the proceedings or a judge may decide to grant the stay independently.

Recently, one servicemember made the news in using provisions of the SCRA to request postponement of a child custody hearing. In this case, a father/servicemember had custody of a child and the mother requested a custody modification granting her temporary custody of the child. The servicemember was not able to appear at the hearing. Initially, the family law judge planned to enter a judgment against servicemember, but the servicemember's family mobilized social media and the judge eventually agreed to postpone the hearing.

For more on different considerations that affect child custody and child support order modification proceedings, it is helpful to consult an experienced divorce law attorney. Our team of Oak Brook family law attorneys at Kathryn L. Harry & Associates, P.C. has been helping families for over 15 years. Contact our office today at 630-472-9700 for more information on how we can help you.