This article explains several aspects of the Service Member’s Civil Relief Act and how they affect the rights of military personnel and their families.
The conflict in the middle east placed serious demands on our nation’s armed forces, as more and more National Guard and Reserve Service Members were called to active duty. Thus, family law attorneys are more likely to see military issues in their office.
For over 60 years, Service Members have been protected by the Soldiers’ and Sailors’ Civil Relief Act. The act limited legal actions against Service Members off fighting or otherwise engaged in active military duties, thus making it difficult to defend a lawsuit. In 2003 the Soldiers’ and Sailors’ Civil Relief Act was replaced by the “Service Members Civil Relief Act” (SCRA), which is a complete revision of the old act and extends many of its protections. The provisions of the new act most important to family law attorneys are discussed below.
The new act extends protection to National Guard members called to active duty for 30 days or longer pursuant to any military action specified by the President or the Secretary of Defense. 50 U.S.C. App. § 511(2)(A) (ii).
Additionally, the new act expands a Service Member’s right to ask for a stay of legal proceeding, including administrative hearings. When a Service Member lacks notice of the proceedings, the new act requires a stay (or continuance) for at least 90 days while the court determines if there is a defense to the action and that defense cannot be adequately presented without the member present, or with the exercise of due diligence, counsel has been unable to contact the Service Member (or otherwise determine if a meritorious defense exists). 50 U.S.C. App. § 521(d).
When the Service Member has notice of the proceeding, the 90-day stay applies (upon the Service Member’s request) if the request includes two things. The first is a letter or other communication stating the manner in which the member’s duties materially affect the ability to appear, and a date when the Service Member will be available. The second is a letter or other communication from the Service Member’s commanding officer stating that the Service Member’s current military duty prevents appearance, and that leave is not currently authorized for the Service Member.
Consider the impact of the stay provision in family law cases. Assume a custodial mother receives orders to report for duty in Afghanistan, and she intends leaving the parties’ child with her mother in Florida. How is father to obtain custody when mother’s lawyer imposes a stay request to stop the litigation? If mother has executed a Family Care Plan (FCP), which is required by military regulations, giving custody of the child to maternal grandmother, will that document overcome a court order transferring custody to father? Can the court even enter such a custody order given the stay and default provisions of the SCRA?
Compare the result in Lenser v. Lenser, 358 Ark. 423, 191 S.W.3d 506 (sustaining the Court’s order granting a stay to the Service Member, and awarding custody to the Service Member’s mother) with In re Marriage of Grantham, Iowa Ct.App., Nov. 15, 2004, No. 03-2100; 2004 Iowa App. LEXIS 1257 (denying a stay to the Service Member and upholding the judge’s grant of custody to mother when the mobilized father requested a stay to keep physical custody with his own mother).
What would happen in a California Court? See George P. v. Super. Ct. (2005) 127 Cal.App.4th 216, 24 Cal.Rptr.3d 919, where the Court held that granting an additional stay under the Service Members Civil Relief Act is discretionary, and it may be denied if the member’s ability to appear and take part in the civil action is not adversely affected by his or her military duties.
Reape-Rickett, Attorney at Law
25152 Springfield CT
Valencia, CA 91355