A recent custody case in Michigan highlighted the perils that military parents may face when involved in a custody matter, particularly when on deployment. In that case, Matthew Hindes, active-duty Navy personnel who was deployed on a submarine in the Pacific Ocean, was threatened not just with the loss of his child, but also jail time and fines for failing to appear at a scheduled custody hearing. Ultimately, the local family court changed its tack after receiving nationwide publicity, properly postponing the hearing for ninety (90) days as required by law.
We in Charleston, SC are blessed to still have some military presence in our city, despite the closure of our Navy base years ago, and as a Charleston divorce attorney, I have had the privilege of representing many of our local servicemembers. As active-duty military, what should you do and know if faced with a custody action while you are deployed?
1. Retain a Charleston divorce attorney.
Active-duty military, particularly on deployment, are in no position to defend themselves in a custody matter from the decks of an aircraft carrier or a barracks abroad. You should be able to locate a Charleston divorce attorney who offers some expertise in these types of matters, and many (including this firm) offer discounts to members of our armed services). Undoubtedly, you will need help from a friend or family member to make the retention of an attorney possible, but regular communication often becomes possible once an attorney has been selected.
2. Be familiar with the Servicemembers Civil Relief Act, which applies to Family Court matters.
The Servicemembers Civil Relief Act (or SCRA) provides in part:
When a servicemember does not have notice of an action against him or her:
“(d) Stay of proceedings. In an action covered by this section in which the defendant is in
military service, the court shall grant a stay of proceedings for a minimum period of 90 days
under this subsection upon application of counsel, or on the court’s own motion, if the court
(1) there may be a defense to the action and a defense cannot be presented without the
presence of the defendant; or
(2) after due diligence, counsel has been unable to contact the defendant or otherwise
determine if a meritorious defense exists.” 50 U.S.C. App. §521(d)
When a servicemember does have notice of the action:
(a) Applicability of section. This section applies to any civil action or proceeding, including
any child custody proceeding, in which the plaintiff or defendant at the time of filing an
application under this section
(1) is in military service or is within 90 days after termination of or release from
military service; and
(2) has received notice of the action or proceeding.
(b) Stay of proceedings.
(1) Authority for stay. At any stage before final judgment in a civil action or
proceeding in which a servicemember described in subsection (a) is a party, the court may on
its own motion and shall, upon application by the servicemember, stay the action for a period
of not less than 90 days, if the conditions in paragraph (2) are met.
(2) Conditions for stay. An application for a stay under paragraph (1) shall include
(A) A letter or other communication setting forth facts stating the manner in
which current military duty requirements materially affect the
servicemember’s ability to appear and stating a date when the servicemember
will be available to appear.
(B) A letter or other communication from the servicemember’s commanding
officer stating that the servicemember’s current military duty prevents
appearance and that military leave is not authorized for the servicemember at
the time of the letter.
(c) Application not a waiver of defenses. An application for a stay under this section does
not constitute an appearance for jurisdictional purposes and does not constitute a waiver of
any substantive or procedural defense (including a defense relating to lack of personal
(d) Additional stay.
(1) Application. A servicemember who is granted a stay of a civil action or
proceeding under subsection (b) may apply for an additional stay based on continuing
material affect of military duty on the servicemember’s ability to appear. Such an application
may be made by the servicemember at the time of the initial application under subsection (b)
or when it appears that the servicemember is unavailable to prosecute or defend the action.
The same information required under subsection (b)(2) shall be included in an application
under this subsection
(2) Appointment of counsel when additional stay refused. If the court refuses to grant
an additional stay of proceedings under paragraph (1), the court shall appoint counsel to
represent the servicemember in the action or proceeding.” 50 U.S.C. App. §522
What does this mean?
Simply put, a servicemember is entitled to a ninety (90) day stay in a custody case provided he or she provides the Family Court with certain proof of deployment and inability to attend. That stay can be extended if the member is on extended deployment from which he or she cannot return.
3. What does a servicemember have to show the Family Court to receive a stay under SRCA?
The affidavit the servicemember must provide the Court must include four elements:
a) A statement from the service member that explains how current military duties prevent him from appearing in court or being involved in the case.
b) A statement from the service member that establishes a date when he will be available to appear.
c) A statement from the service member’s commanding officer stating that the service member’s current military duty prevents appearance.
d) A statement from the service member’s CO that military leave is not authorized for the service member at the time.
Servicemembers may apply for some of the documentation they will require online here. A Charleston divorce attorney can assist with the rest of the paperwork needed.
4. South Carolina has its own statute affecting the rights of servicemembers involved in a custody case.
The Military Parent Equal Protection Act, S.C. Code §§ 63-5-900 et.seq also offers some important protections:
a) A Family Court may not enter a Final Order affecting custody of a child until the servicemember has been released from deployment for ninety (90) days.
b) The servicemember’s deployment alone may not be the basis for a permanent change of custody.
c) While a Family Court may temporarily modify an existing order to accommodate the child during deployment, that temporary modification is automatically terminated upon the servicemember’s release and the old order is automatically reinstated.
d) A Court may, upon petition, reduce or increase support obligations based on a deployment, which modification is automatically terminated upon release.
e) In an effort to have parents cooperate regarding temporary custody and support during deployment, no agreement entered into will be deemed a “substantial change in circumstances” that one parent could use against the servicemember in later proceedings.
f) Fees may be awarded to either parent when the other is uncooperative or fails to provide timely information needed to adjudicate matters in advance of a deployment.
In summary, if you are active duty military, or co-parent a child with active duty military personnel, you need to be aware of these statutes and how they will affect your custody case. If you require the services of a Charleston divorce attorney in navigating these laws, please do not hesitate to contact us, and please keep in mind that we offer discounts to military personnel.