When a servicemember who has primary custody of a child deploys they must have a family care plan that lays out who will take care of the child(ren) during their absence. A dispute over custody can arise when a third party, usually a grandparent or another close relative of the servicemember, is given physical custody of the child(ren). Unless the civilian parent has been found by the court to be an unfit parent or one who has neglected the welfare of a child, then the servicemember cannot override the civilian parents’ rights. The Servicemembers Civil Relief Act (SCRA) was designed with the idea that a service member deployed in defense of our nation may not be able to adequately participate in certain legal proceedings. If you have children with a member of the U.S. Armed Forces then understanding what effect the SCRA can have on child custody proceedings is important
There are two sections of the SCRA that are most commonly invoked in family law matters, sections 521 and 522. These sections allow for the servicemember to request a stay, which is basically a request to put a temporary hold, on any pending legal proceedings until the servicemember is able to appear in court. The most common reason for this request is when a servicemember is deployed. It’s important to note that a stay in this type of circumstance is not permanent and it does not bar the civilian parent from being able to obtain a temporary order of custody.
Which section of the SCRA applies depends on whether or not the servicemember has notice of the custody proceeding, meaning the servicemember has interacted with the legal proceeding either by appearance or correspondence such as filing a motion or response. Section 522 applies when the servicemember has been given notice and in order to obtain a stay the servicemember must show the court that their military service materially affects his or her ability to appear before the court which must then be backed up by additional proof from the servicemembers commanding officer that such duties do affect the servicemembers ability to appear and that military leave is not authorized. This serves as a protection against abuse of the SCRA. A servicemember will not be granted a stay simply because it is inconvenient for them to appear in court. Some courts even allow for the servicemember to “appear” by teleconferencing. Finally if the servicemember cannot appear, the soldier must notify the court of when they can appear.
Section 521 applies when a servicemember does not have notice of the child custody proceeding. This usually arises when the civilian parent has filed a request with the court for custody while the servicemember is deployed. Under this circumstance, the court must determine the active duty military status of the servicemember. If the status is confirmed, the absent servicemembers appointed attorney, or the court, may make a motion for a temporary stay in the proceedings. If the court grants such a motion then there is a mandatory minimum 90 day hold imposed.
Family law always the best interests and welfare of the child at the forefront of child custody proceedings. Therefore the civilian parent may file for a change in child custody whether a servicemember is deployed or not and such a case can move forward even if the servicemember is granted a stay. However it should be noted that a motion to the court for custody should not be made with the intent to take advantage of the servicemembers absence but should be made when the best interests of the child are at issue. The court will balance the rights of all parties involved in making a decision on child custody. Often courts may enter a temporary custody order for the civilian parent when a servicemember is deployed. This means that a servicemember may still retain the right to primary physical custody of the child when they return.
With the high rate of deployment among U.S. servicemembers, it is important for civilian parents and servicemembers to have open communication and to work together in determining what custody arrangements are in the best interests of the child when deployments are likely to occur. Consulting an attorney to help with a temporary custody arrangement can protect the rights of both parents while keeping our nation’s armed forces strong.