November 2014 Bar Bulletin
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November 2014 Bar Bulletin

Protections for Military Servicemembers in Civil Cases

By Laura A. Carlsen

 

This summer people across the country were shocked and appalled when news broke of a military father who, despite being deployed, faced contempt and losing custody of his daughter due to his failure to appear in a Michigan court.1 Of concern was not only the court's disregard for the father's military service obligations, but also that the court wanted to give the mother custody as a default even though Child Protective Services previously deemed her an unfit parent and removed the child from her care.

Although this occurred in Michigan, the case has raised questions about what protections exist for military servicemembers who are unable to participate fully in their civil/family law cases due to military obligations. As a result, Michigan's Senate passed a new bill,2 which will amend custody statutes to allow a deployed parent to request a stay of proceedings and prohibit the court from changing visitation placement while a parent is deployed, except for temporary orders based on clear and convincing evidence that it is in the child's best interest.

Thankfully, these protections already exist in Washington, no doubt due to the state's seven major military bases and more than 65,000 military personnel.3 It is extremely important that servicemembers and attorneys understand these protections and their applications.

Servicemember's Civil Relief Act

The primary protection afforded to servicemembers by federal and state law is the Servicemember's Civil Relief Act (SCRA). The SCRA protects servicemembers (including National Guard and reservists) and their dependents from being negatively impacted in civil court cases while on or returning from active duty.4 Further, it allows servicemembers to concentrate on military duties without distraction due to long-distance litigation. The SCRA's primary protections are twofold: 1) it can prohibit the entry of default orders against a servicemember, and 2) it can authorize and mandate a stay of proceedings in certain circumstances.

In all civil cases, before a court can enter a default order against a party, the court must examine affidavits to determine whether that party is absent due to military service.5 These affidavits include: a statement from one party about the other party's military service, a printout from the Defense Manpower Data Center (a free government website that states whether a person is active-duty military),6 and a statement as to whether there was a response within 20 days to a "Notice re: Dependent of a Person in Military Service."7

If the absent party is a servicemember, the court cannot grant a default order against that party.8 Rather, the court must stay proceedings upon motion by counsel or sua sponte if it appears there is a defense to the action that cannot be presented without the servicemember or if it cannot be determined whether such a defense exists.9 The court must also appoint an attorney to locate and speak with the servicemember.10 If the servicemember cannot be located, then the appointed attorney cannot bind the servicemember or otherwise waive any defenses.11

In circumstances where the servicemember has appeared but is then called to duty, a stay of proceedings is not mandatory, but may be requested by the servicemember upon providing the following: 1) a statement about how the military duties will "materially affect" the ability to participate in the case/appear in court; 2) a date when the servicemember will be available; 3) a statement from the commanding officer about how duty prevents appearance and participation; and 4) a statement as to whether the military has authorized any leave for the servicemember.12


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