SERVICEMEMBERS CIVIL RELIEF ACT

Col John S. Odom, Jr.USAFR (ret.)

Overview• Basic military concepts as they relate

to family law cases• Specific provisions of SCRA• Family care plans• Congressional “interest”• State legislative efforts• Suggestions on how to proceed

Theory vs. Practice

• SCRA primarily one of education– Opposing counsel don’t understand it– Many judges are not familiar with it

• Only rule applicable– The SCRA means only what the judge at the

time says it means.

Unique Nature of Child Custody Litigation

• Primary concern is always “best interests of the child”

• Highly charged emotional situations• Some cases never over until child

reaches adulthood– Children as “pawns” in the never-ending fight

between two bitter ex-spouses

Language Barriers

• Military personnel don’t speak “court”• Courts don’t speak “military”

– “Why doesn’t the Air Force just bring the person back from Korea for this hearing?”

– “I can’t read these orders. I have no idea if this person is on active duty or not.”

– “Your Honor, I have no idea how to find this person.”

Unique Nature of Military Service

• Servicemember told where and when to go to duty– Unathorized absence from duty is a criminal

offense

• Military at war since October 2001– Deployments up to 15 months– Multiple deployments– Heavy reliance on Guard and Reserves

Statistics• 1,445,000 active duty

– Army, Navy, Marine Corps, Air Force, Coast Guard

• 850,000 Guard and Reserve members– Army National Guard– Air National Guard– Army Reserves– Navy Reserves– Air Force Reserves– Marine Corps Reserves– Coast Guard Reserves

Military Single Parents

• Single custodial parents on active duty – 76,638

• Single custodial parents in Guard and Reserve – 77,526

• Total single parents in Armed Forces

–154,164

Mobilization Process• Unit identified – usually 12-18 months

advance notice• For Guard & Reserve – unit mob

order issued several months before actual reporting date – Delivery triggers SCRA protections

• For Active Duty units – usually know at least a year in advance

National Guard may be different

• Natural disasters may call for short-notice call-ups– Hurricanes– Tornadoes

• Critically important for single custodial parents in the Guard to have plans in place at all times

Proof of Duty Status

• Active duty – will have an active duty ID card (a “CAC” card)– Will not necessarily have any orders showing

they are on active duty

• Guard – orders often typewritten on ordinary white paper

• Reserves – orders generally on a printed form

DMDC Database• DMDC is the “choke point” for data on

all personnel on active duty– Covers all uniformed services

• Online check and issuance of certificate of service takes only seconds – Google “DMDC SCRA”

• https://www.dmdc.osd.mil/appj/scra/scraHome.do

Servicemembers Civil Relief Act

• 50 U.S.C. App. §§501-597b• Alters the terms of conventional

contracts• Applies in ALL civil proceedings• Applies to all courts and

administrative agencies of federal, state and local governments

Commonly understood SCRA Protections

• No self-help repossessions, evictions, foreclosures or sales of stored goods

• All civil enforcement/repo actions require a valid court order, regardless of the contract language

• 6% cap on interest on pre-service debts

SCRA Mantra

NOSELF-HELP

Other SCRA Protections

• Statutes of limitation and periods for redemption of real estate do not run in favor of or against SMs while on active duty

• Allows for cancellation of premises, vehicle and cellphone leases under specified conditions – with or without “military clauses”

What SCRA Doesn’t Do

• Cannot “change custody” with a power of attorney

• Cannot modify a child custody decree without a court order

• SCRA does not alter the terms of custody decrees– Party can petition for stay or vacation of

judgment under 50 U.S.C. App. §524

Common Misconceptions

• SCRA applies and protects active duty servicemembers whether stateside or overseas– “Deployment” doesn’t just mean overseas

• Some SCRA protections commence even before the person enters active duty

Default Judgments and Stays

• 50 U.S.C. App. §521 prevents entry of default judgment except in strict accordance with SCRA provisions

• 50 U.S.C. App. §522 mandates a minimum 90-day stay of proceedings when requirements of SCRA are met

Section 521 -- Defaults

• Applies only if defendant has not appeared• Plaintiff’s Affidavit

– Whether or not defendant is in military; or– If unable to determine status - court may

require plaintiff to post bond• If defendant is a military member, court cannot

enter valid default judgment until attorney is appointed to represent military member

Stay provision in §521• If defendant is in military, court SHALL stay

proceedings– Minimum of 90 days on application of counsel

or court’s own motion• Court must determine that there

– may be a defense that cannot be presented without presence of defendant; or

– after due diligence counsel has been unable to contact defendant or otherwise determine if a meritorious defense exists

Duties of Appointed Counsel

• Must make contact with the military member– Contact local military unit or armory with

request for assistance

• MAY NOT WAIVE ANY DEFENSES THE SERVICEMEMBER MAY HAVE

Setting Aside Default Judgments

• Court SHALL reopen a default judgment entered while SM on active duty or within 60 days thereafter, when– SM applies while on active duty or within

90 days thereafter, and shows• Materially affected by military service,

plus• Meritorious defense

Section 522 Stays• Temporary delay in civil actions until

servicemember can appear – During period of service plus 90 days– Servicemember (SM) has received notice of

proceeding• Automatic 90 day stay IS MANDATORY if:

– SM shows military duty materially affects ability to appear, and date when can appear

– Commanding officer states military duties prevent appearance and leave not authorized

2003 SCRA is Different

• Under old Soldiers’ and Sailors’ Civil Relief Act– Granting or denying a stay was strictly within

discretion of the court

• Under 2003 SCRA– If servicemember submits request properly,

granting of at least a 90 day stay is mandatory

Extension of Stay

• SM may apply for additional stay based on continuing material effect of military duty on SM’s ability to participate in the litigation

• If Court does not grant additional stay, it shall appoint counsel to represent servicemember

“Help” from Congress

• High profile cases bring Congressional scrutiny– Proposed “fixes” are simplistic and

unworkable– Danger of inadvertently making matters worse– Federal courts have no experience doing

what you do every day

2008 Amendments to SCRA• 50 U.S.C. App. §521(a) (default judgment

section) was amended by inserting “including any child custody proceeding,” after “proceeding”

• 50 U.S.C. App. §522(a) (stays of proceeding section) was amended by inserting “including any child custody proceeding,” after “civil action or proceeding”

The Turner Factor

• Finally achieved his amendment to SCRA on the eighth try

• New Section 208 – 50 U.S.C. App. 528 added to SCRA

• Should not cause a change in determining best interests of the child

Family Care Plans• Most important document in prevention of

custody fights while members are deployed• New DoD regulation published April 2010

– All servicemembers who have custody of child when other parent not in household required to have a FCP

• Cannot “change custody” by a power of attorney

• Help SMs avoid “self inflicted wounds”• FCP could be approved by a court

What we’re telling the troops

• Get the non-custodial parent involved in the FCP process– Attempt to get concurrence in the FCP

• Consider getting the court involved– “Home state” issues with UCCJEA

• Credibility with Court is vital– Virtually no one learns of an overseas

deployment on days’ notice

Special consideration for National Guard

• Callup for natural disasters or civil unrest can happen very quickly– Someone has to feed, clothe and house

Junior– Vitally important that Guardsmen think ahead

on FCPs

2010 Report to Congress

• DoD submitted a report to Congress on child custody litigation in May 2010– No evidence that state courts were denying or

changing custody based solely on deployment or prospect of deployment

• DoD is concerned for both servicemembers and their children

DoD’s Current Approach

• Require Family Care Plan for every custodial parent servicemember

• Work with state legislatures to enact military child custody statutes– 43 states have such statutes thus far– New Jersey’s signed into law in 2013

• Support ABA Military Pro BonoProject

Military Child Custody Statutes

• No permanent orders altering custody entered while custodial parent on active duty

• Require expiration date for any temporary orders – burden on non-absent parent to justify a change custody on expiration

• Deployed service should never be the sole basis for altering custody order

Military Child Custody Statutes (con’t)

• A servicemember with visitation rights should be allowed to delegate those rights to a third person during absence due to military service

• Expedited hearings upon request of servicemember

• Allow electronic testimony in hearings

Uniform Deployed Parent Custody and Visitation Act

• Approved by National Conference of Commissioners on Uniform State Laws in July 2012

• Comprehensive uniform legislation covering all aspects of custody and delegation of custodial and visitation rights

Way Ahead for UDPCVA

• Approved by Commissioners’ Style Committee in 2012

• Approved by ABA House of Delegates in February 2013

• Approved by 7 states and pending in three more and District of Columbia

Reference work available

• A Judges Benchbook for the Servicemembers Civil Relief Act

• ABA Publishing – 2011• http://apps.americanbar.org/abastore/

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Questions?

• Colonel John S. Odom, Jr.• 318-221-1600

• John.odom@jodplaw.com