Child Custody and the SCRA

The Servicemembers Civil Relief Act may offer military members the option to delay court proceedings - often at the cost of the frustrated non-military parent.

By , J.D.

The Servicemembers Civil Relief Act (SCRA) is a federal law that provides for special treatment of service members in court proceedings in the United States. It can affect your child custody case in significant ways.

The idea of the SCRA is to protect service members from drama at home so that they can focus on their important tasks at hand. The law allows service members to get a delay in any court or agency proceeding that might affect their rights. (50 U.S.C. Appendix § 502(2).) A service member can get a delay by showing that harm would result if the case went forward.

How the SCRA May Affect Your Custody Case

If you're in the military, the SCRA is your friend; it can prevent a judge from issuing court orders that could affect your relationship with your children in important ways. If you're the nonmilitary spouse, you may feel frustrated by the delays, because the law gives service members extra time to respond to legal papers and allows them to ask to have scheduled hearings postponed until the service member can arrange to be there. As a result, an order for support or for a change in custody may take a lot longer than the civilian spouse had hoped. In fact, the entire divorce case may be delayed, making it take a lot longer to get the final judgment as well.

That said, there are often issues related to children that need to be resolved promptly so that the children can have some stability and predictability. Courts do a balancing act between the important protections provided by the SCRA and the needs of the family at home. Often, children's needs come before the SCRA rules in judges' orders.

For example, if a service member successfully requests an SCRA delay, the court can still make a temporary custody order. This avoids making the civilian parent and child wait for resolution of their postseparation living situation, and also prevents service members from abusing the SCRA just to prevent the civilian parent from exercising parental rights. For example, one military parent left her child, who was under a joint custody order, with her new spouse instead of her ex-husband, who had parenting rights. The court wouldn't allow her to use the SCRA to prevent a change of custody, instead giving the father primary custody.

Which State Controls Your Custody Case?

One issue that comes up often in military cases is which state has control (jurisdiction) over decisions involving the children. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), sets out rules about jurisdiction for all children, including service members' children. The UCCJEA rules are complicated, as they require figuring out where a child has lived for the six months before the action is brought -- sometimes a harder task than it might seem.

These rules can be hard on service members, especially those who are deployed overseas. If they stay away longer than six months, the other parent can establish residency in a state where the service member has no ties, and the rest of the case will have to be handled there. A good idea when you are deployed overseas is to ask the other parent to sign an agreement about where the child will live and where the permanent home is. Then you won't end up in a battle about where to argue about custody.

Balancing the Rights of Military and Civilian Spouses in Custody Cases

A service member's protection against default judgments (a court judgment issued against a person when the person wasn't present) also applies to child custody proceedings. This is a new rule, and there aren't many court decisions to provide guidance. But it appears to mean that while a service member is deployed, a civilian spouse can't persuade a court to enter a permanent child custody order if the service member parent fails to appear and argue against the change.

Some states also bar their courts from entering permanent orders involving children while the service member is deployed. Also, a growing number of states now have rules that a service member's absence from parenting because of deployment or other military service can't be used as a factor in deciding custody.

If you're a civilian and it seems like everything is weighted in favor of the service member, remember that you have the enormous advantage of proximity -- to the children as well as to the courts. Don't give up without an argument if you think the service member parent is taking advantage of the SCRA unfairly. For example, if the service member is invoking the SCRA to delay a hearing by saying there's no leave available, you can check the Leave and Earning Statement (LES), which provides information about accrued leave, and see whether it's just a delaying tactic.

If you need help obtaining the LES, you can seek help from a qualified attorney or from your state's child support enforcement agency.

Excerpted from Nolo's Essential Guide to Child Custody & Support, by Emily Doskow.

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