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What the Servicemembers Civil Relief Act Doesnt Protect
May 6, 2007
When I read this article, I had strong feelings that this was something that I wanted to address. This situation angers me, not at the military but at the civilian judges who are, in effect punishing servicemembers for doing their jobs. It’s a travesty and something needs to be done about this as soon as possible.
Servicemembers who are serving deployments overseas are protected by the Servicemembers Civil Relief Act. This act is meant to protect the servicemember by staying civil court and administrative proceedings against the servicement while deployed. Under this act they cannot be evicted, creditors can’t seize their property and if civilian health benefits were suspended as in the case of the Reserve or National Guard components, they must be reinstated upon the servicemembers return. Many military members are finding out that the Servicemembers Civil Relief Act doesn’t protect them in all civil proceedings.
These servicemembers are single parents and many are returning from deployments and finding that they’re losing custody of their children. One example of this, is then Lt. Eva Crouch who’s Kentucky National Guard unit was mobilized. Lt. Crouch had raised her daughter single-handedly for six years following a divorce from her daughters father. When she was deployed, her daughter went to stay with her father. A year and a half later, when Lt. Crouch returned from her deployment, she called her ex-husband and informed him that she would be picking up her daughter the following day. She was quite suprised when he replied “Not without a court order you won’t.” Lt. Crouch sought legal help and a custody battle ensued. Within a month, a judge decided that her daughter would remain with her father, stating it was in the best interests of the child. In effect, this judge was punishing Lt. Crouch for serving our country.
Family court judges across the Nation are saying that family law trumps the federal law that protects servicemembers. In many cases where a soldier deploys, their ex-spouses are seeking custody and the family court judges are granting that change in custody. Proponents of the Federal Law are saying that it should be changed to ensure that deploying soldiers can regain custody of their children when they return.
“Now, they’ve got a great argument when Johnny comes marching home that the child should remain where they are, even thought it was a temporary order,” says Lt. Col. Steve Elliott, a judge advocate with the Oklahoma National Guard.
Unfortunately, many of these servicemembers are finding out about these situation while they’re deployed. Worrying about custody issues during a deployment can spell danger not only for the soldier but for his or her fellow soldiers as well. Marine Cpl. Levi Bradley is an example. He was serving in Fallujah, Iraq when he found out about the custody proceedings.
“My mind wasn’t where it was supposed to be,” he says. And the distraction cost him. One day he rolled a Humvee he was test-driving. He wasn’t injured but was reprimanded.
His attorney sought a stay of the proceedings under te Servicemembers Civil Relief Act, which provides a minimum 90 day delay in proceedings. The attorney argued that he had a right to be present at the proceedings to testify. The judge in the case, refused to postpone the case, stating that he didn’t believe it was subject to Federal Law, because “this Court has a continuing obligation to consider what’s in the best interest of the child,” according to the court records. The hearing proceeded and in November 2003, the court awarded temporary custody of Cpl. Bradley’s child to his ex-wife. Last summer, the court made the temporary order permanent.
“I fought the best I could,” he says. “The act staes: Everything will be put on hold until I’m able to get back. It doesn’t happen. I found out the hard way.”
According to one Circuit Court Judge in Oregon, Judge Dale Koch, who is president of the National Council of Juvenile and Family Court Judges, state court judges, particularly those deciding custody case are obligated to follow their family codes and in most states there is language stating that the primary interest is in the best interest of the child.
“We recognize the competing interests,” he says. “You don’t want to penalize a parent because hey’ve served their country. On the other hand … you don’t want to penalize the child.”
Judges are mentioning factors such as stability and considering who has been the child’s main emotional provider as parameters in making their decisions. Thy say those parameters conflict directly with military service. My question is this, if the servicemember had custody of the child for a long period of time, prior to their deploymet, as in the case of Lt. Crouch, doesn’t that show that she was the primary emotional provider for her child?
Currently Military and family law experts aren’t certain how large the problem is. They say though that about 5.4% of active duty military members are single parents, or more than 74,000. Also more than 68,000 National Guard and Reserve members are also single parents. Just knowing that something like this can possibly occur while deployed, serves to distract these soldiers, at a time when it’s extremely important that they be completely focused on their mission.
The solution appears that the Serviceembers Civil Relief Act must be changed to specify that it does apply in custody cases. Some states are taking action now, instead of wating for congressional action.
In 2005, California enacted a law stating that a parent’s absence due to military obligations cannot be used to justify permanent changes to custody or visitation. Michigan and Kentucky have followed suit, requiring that temporary changes due to deployment must revert back to the original agreement once the deployment ends. Similar legislation has been proposd in Arizona, Florida, Oklahoma, Texas and North Carolina.
“These men and women need to know that when we deploy them, they don’t have to worry about being ambushed in our family law court system,” says Michael Robinson, a lobbyist who helped write the California and Michigan laws. “The insurgents are doing enough ambushing over there. The only differnce between what’s occurring there and here is … it’s an emotional bomb.”
I think that this is an issue that we can and should take to our state officials. Until the Federal law is changed to specify protection of the servicemember in custody issues, we should all urge our State lawmakers to enact state legislation to do so. That’s the least that we can do, for those who are willing to make the sacrifices they make for each of us and our Nation.
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37 Responses to “What the Servicemembers Civil Relief Act Doesnt Protect”
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Terri Thanks so much for posting this! I too, read this last night, and became very upset, and angered, and felt so bad for soldiers and their families, having to go through this!! I almost wrote you about it~But as usual, you were already on top of it!:) I was very happy to see that our state here, supports our deployed soldiers, and does a few others, hoping many more will follow suit!!!
Me too! The troops have enough to worry about while they’re deployed, without having this as an added stressor. Hopefully they’ll get to work quickly and get the Federal Law changed to specifically address this issue.
Not that it matters, but let’s not forget that Lt. Crouch was never deployed beyond the confines of Fort Knox (she saw her daughter nearly every weekend) and, the state supreme court (Kentucky) eventually reversed the decision below and restored physical custody of the child to Crouch.
We are seeing this story from a very high altitude, so to speak. The story thus begs a closer inspection of the record before the trial judge in the Crouch matter. In other words, the MSM may be presenting but half the story (which begs the further question of why, Terri, you are taking this MSM report as gospel truth without investigating behind the lines).
Mobilization of a National Guard unit is most always the same as deployment, except in times of disaster. Perhaps Richard you should research a bit more into what the terminology means. Her unit was mobilized for a year and a half. Yes she did eventually regain custody of her daughter AFTER the law was changed in Kentucky to support the Servicemembers Civil Relief Act and after she spent $25,000 in legal fees and many months in court. The Servicemembers Civil Relief Act does NOT cover soldiers if they are not deployed. For instance, if an active duty soldier is not deployed but instead at his or her regular duty station, they are not protected under the clauses of the Servicemembers Civil Relief Act and can be evicted or subject to civil proceedings, repossessions and the like. If they are deployed they are protected from such actions, due to the fact that they are not able to appear in court proceedings to give their testimony or defend themselves. So Richard, you can kiss my ass!
Great article Terri. I know a guy this happened to. He was going to stay in the Army but decided to get out because he wants custody back of his daughter. He has a year to go and another deployment coming up so he will bide his time. And Richard you are so ridiculous you are surreal. When you get done kissing Terri’s ass why don’t you kiss your horses ass too. And don’t give me your condescending bull shit either. Spare me. Spare us all.
The irony here is these are exactly the types of situations that I am called on from time to time to assist with - pro bono I might add! So let’s not get too carried away with the butt kissing scenario - it’s simply my way of supporting the troops.
BTW, let’s also leave Richard out of this. He is not me, nor am I him. I’d much prefer you call me Nephi.
oh ya what ever like we could believe anything you say any way. and as you always say, prove it.
Sorry sue, but that would violate client confidences, which I am not about to start doing - not even for you, sweetheart.
Vt~these are just a few “sample” cases. No we do not know all the circumstances surrounding, but I do know of a few cases where deployed soldiers, lost a custody case just because they were deployed, and unable to show up in court.So the fact, that some states are willing to put the cases on hold until after deployment is the right thing to do! And Terri is right about what a *deployment* is!!!! Family law, and the courts knowing what is in the best interest of a child, can be nothing more than a circus, sometimes, but that is not the main point here.
I’m not your sweetheart and that wasn’t what I was talking about. But then you have that “dumb” act down real pat.
I think instead of addressing you with one of your many personas, I’ll just start addressing you as “dick head.” It fits perfectly. Your entire purpose here wasn’t to do anything except try to play games. I hate to tell you buster, but Military.com is far from being mainstream media.
VT~since you brought up your “pro-bono” services? I have been wondering for quite some time, are these “pro-bono’s”, free of any strings attached? And do you share your views(political, miltary, etc) with those said clients?
So, “nephi” do you publish Richard’s work on your site?
Not typically. Why do you ask?
Then Richard takes yours??
Or are you just Richard/Nephi/Sharon/Critical Facts and the probably half dozen other names you have hidden behind on this and ASP?
Gender/identity confusion at it finest……
Just think how confusing it would be for him/her to get dressed in the mornings. “Let’s see…..am I going to be a male or a female today?”……
Ha Ha Ha! You’ve got a very valid point there Sylvia!
I don’t really think our little troll is confused at all. He is just delusional thinking he is fooling all of us!!
Delusional? I hate to be the one to tell you, but my views are pretty much in line with the mainstream of Americans these days.
BTW. How’s about them Jazz!!
You just have no clue. So sorry!! The boat sailed with out you!!
Pick up a newspaper sometime, sue, and just for kick’s sake, read some of it. You might be surprised what you learn.
Well considering that most all newspapers, along with most of the major television networks, tend to report decidedly one-sided, biased information, without ALL of the information that’s available, I’m sure tat Sue relies on the same sources that I do Sharon/Richard/CF/Dick/Nephi… That being the “boots on the ground” and sources which are more often than not, willing to tell both sides of a story.
What makes you think I don’t read your funny papers before I put them under my pet? As Terri said, if your ilk didn’t spew propagandist garbage and falsehoods maybe I would pay more attention to that. But since they don’t and if I were to, I would have a brain that was as mushy as yours, I think I will just stick to the places that I value for my info thanks tons!! And by the way, it wouldn’t surprise me in the least what I would find, because I do see the papers and the news and the lies in/on them. Just because you choose to be less selective of what you allow to float around in your Kool Aid than I am about what goes in my brain, well that is your problem. Drink up Dick!!
I am not here to get into a name calling contest but it seems that this blog has gotten a little off topic. I have noticed that some of these cases are before Dec 2003. Although, some cases are not and despite the fact that since Dec 2003, the courts have still upheld the decisions of earlier courts, my confusion with all of this has just increased even more. The “Silent Partner” (a lawyer-to-lawyer resource to military legal assistance attorneys) states that the Servicemembers Civil Relief Act (SCRA), signed by President Bush on 19 Dec 2003, states in Paragraph #1 under GENERAL RELIEF PROVISIONS, “The SCRA expands the application of a SM’s (Servicemember) right to stay court hearings to include administrative hearings. Previously, only civil courts were included, and this caused problems in cases involving administrative child support determinations as well as other agency determinations which impacted servicemembers.” Would not a change in custody ultimately change child support for a minor child(ren). At least in my state, child support is based on the number of overnights that the child(ren) spend with each parent. Why then would this change made by the signing of the SCRA in Dec 2003 not put a halt to these type of custody battles that have been occuring with our service men and women during deployments? VTSharon, can you, or anybody else answer this question or add some insight to this? Has this been challenged with our Federal Supreme Court to date? If so, what was the outcome or some case law that I may be able to refer to? I can foresee this happening to not only myself with my children but also to my husband with his children. Any and all constructive advise would be much appreciated and greatly accepted!
I noticed that as well when I posted the article which just came out. However what I think you’re seeing is that because it doesn’t specifically state in the SCRA that it covers Child Custody, the State Courts are chosing to ignore it. That’s why some states and hopefully more will pass their own legislation to protect the soldiers until the SCRA can be updated to specify this as well.
armywife, VT or whoever he/she is, has stated that they “occasionally” do pro bono work for military folks, if in fact he/she is even an attorney. It’s hard to tell, considering he/she has come here under many different names. So we really don’t know if he/she is who they say they are. Being a military family member myself, I would suggest speaking with JAG or your post IG, or possibly even consulting a private attorney, if you feel that this could possibly affect you in any way. There’s no real answer to give you, as things as can interpreted differently and handled differently, from state to state and from judge to judge, until it’s spelled out in the SCRA, specifically.
armywife,
Child custody and support orders are a legal creature left almost entirely to state law - child custody in particular falls generally under the health, morals and welfare exceptions reserved to the states. As such, it is unlikely that federal law could ever be used to stay decisions re custody, as that would impermissibly intrude on a state’s right to determine what is in the “best interest of the child.” The fact that a change in custody might collaterally involve an administrative hearing re the support award is probably a non-starter (and would, of course, depend on the laws of the state having jurisdiction as most support awards are made by the court, not an administrative branch of state government). The Terry Schiavo case presents a great example of this type of dance between the extent of power held by the federal government and its sometime misguided attempts at trying to intervene into what is historically a state matter.
Thank you Terri! We have gone to JAG however, we were specifically told that they do not get in the middle of civil cases, especially if it pertains to child custody/visitation or divorce. An outside attorney that is versed in military law is extremely hard to find. We have has no luck here and we have searched half of the state already.
Thank you VTSharon! While I do understand that States do have jurisdiction over matters within their own state and that as such, are also bound by their state constitution. Are they not also bound by Federal Laws and Acts which inherently effect citizens of their state? If a State does not have a law governing the issue at hand, would they not then refer to any federal law that may be in effectand pertains to the case? I really do not want to sound ignorant to the issues, I merely do not know the answers to these questions. If a person commits a crime, they can be faced with (depending on where they live) city/county/state/federal charges. Does it not work the reverse as well?
Thank you both once again. The more that we can educate ourselves on this issue, the better chance we have to put up a stronger fight for our children!
Most generally they will refer to their state family law, unless, in this instance the Federal Government would specifically address this in the SCRA. While JAG does not get involved per se, they can give you information and advice. They should also have a listing of attorney’s in the area who specialize in military law. The biggest problem with this is that the ex-spouses are mainly taking advantage of this when the spouse deploys, and at least in these instances, not addressing any custody issues until then. Civil law is much different then the criminal laws. A whole different ball of wax. I would suggest asking JAG if they have a list of local attorneys specializing in military law.
[...] while back, I wrote this story about what the Servicemembers Civil Relief Act doesn’t protect and how many [...]
I am the mother of a military daughter myself. My daughter has been deployed for Iraq. She had lived with her boyfriend for 6 years and has three beautiful children ages 5 years, 4 years & 8 months.
November 5th, 2007, after returning home from one of her training sessions she broke up and moved out form her boyfriend. Knowing that she was being deployed she opted not to rent a place of her own, but rather shared a small apartment with some fellow soldiers. She had some additional training between Dec. 10 - 22. So there were merely a few weeks she would be home anyway. Naturally I told her that she was more than welcome to stay with me which she took me up on between Dec 22 and Jan 2.
She and her ex b/f decided to share joint custody of the children. She was to have them for two weeks and then he was to have them for two weeks until the time she was to deploy out (January 3). She had advised me that he would have custody of them during her stint of active duty until she returned.
I was worried he would not allow me to see my grandchildren in her absence as he and I are not the best of buddies. I expressed my concerns to her about this and she reassured me that he would not do that.
I kissed and hugged her and the children all good bye the night before she deployed (Jan 2). She left my house with her children in tow and drove to his home. He was taking her to catch the bus at 4am that next morning. I thought everything had been worked out among them and the situation was fine.
That was until the day after she left. I received a call from her b/f’s mother and learned that he had been checked into a local rehab center after suffering a mental breakdown. I then also learned that before she left, my daughter had signed paperwork leaving her children in the care of a distant relative in the event that neither of them could care for the children.
The children were placed with my step-sister and her family. This was not a court ordered placement but merely on the fact that she had signed a paper before she deployed out stating that in the event her ex was unable to care for the children in her absence that this relative would care for them. This was all signed and done unbeknown to me.
The problem that I have with the situation is that I know this relative has had her own children taken away by CPS in the past. I also worry that when my daughter returns this relative is just deceptive enough to keep my daughter from regaining her custodial rights as a parent.
I myself am a 46 year old divorcee. I work full time and own my own home (rather I have a home mortgagelike most Americans). I have lived with my b/f for 4 years and though caring for my grandchildren could prove to be a challenge, I know that I could do it and would have made all the necessary arrangments to make sure these children received the proper care they need.
It really hurt me that my daughter would place her children with this relative rather than ask me, her own mother (the children’s grandmother) to care for the children.
My fear is that when she returns that the courts will take the children away from her altogether. The children’s father has not stepped up to the plate either. In his own words he has now been “kicked out” of rehab but yet he did not seem to rush right over to get the children.
I have not seen or heard from my daughter, or my grandchildren since Saturday Jan 5th when she called me screaming, that I was trying to take her children and ordered me to stop “harrasing” this relative. The fact of the matter is I placed one call to this relative to see what personal items the children needed. That was the only call I had placed to them.
I am hurt and don’t know what to do or who to turn to. Should I stay out of my daughter’s personal business and leave well enough alone? Should I try to retain an attorney for the children’s sake? I have many mixed emotions over the whole ordeal. My daughter has told me in no uncertain terms not to call or contact them. I don’t know what prompted my daughter to turn on me in a matter of a couple days and I truly do not know her reason’s why she has done this. I don’t feel this is the appropriate time to try to contact her while she is in extensive active duty training.
On top of this all her ex b/f’s mother has been calling me and telling me that I should try to seek custody. She said that neither my daughter or her son were fit to care for these children. She (the b/f’s mother) works 2 jobs, 60-80 hours a week and did not have the room in her small apartment to take the children in, but she would support me if I were to seek custody.
My daughter and her ex b/f live in Indiana and I am afraid that if I don’t step up and do something now that she will loose total custody when she returns. Her b/f has threatened her in the past that he would fight to have the her custody of the children taken away from her.
Ultimately, the best interest of the children is what should be the only deciding factor in a matter such as this. I can’t provide you with advice, but can only suggest that you do whatever you feel is in the best interest of your grandchildren.
Im going through the same thing right now. really looking for advice if anyone knows about it. The court system is michigan. In my case im a guard soldier deployed within the u.s. and am being told i cannot take her out of state to see her and on the other hand i cannot get leave all the time to go there or spend money for a hotel to take her to nor do i want to drag my daughter through that. so any advice. feel free to email me and thank you.
I’m sorry, but family law should absolutely trump federal law.
My sons were born out of wedlock to a man who joined the military shortly before he walked out on us while I was only two months pregnant with our second. All indications point to his joining as a way a very well planned out and executed means of leaving and using the military to hide behind the SCRA to avoid his obligations to his children. It has been a year and a half, and Child Support Enforcement finally served him 5 days before he was to leave for Iraq.
Should my children suffer through another year of not getting support from this man because he is protected from a dna test?
Should I not be able to file for custody for the children he left me with, for 18 months so far, (2 and a half years if the courts grant the stay as directed by the SCRA) until he returns? In spite of the fact that he has not supported them all this time, now I should have to risk HIM being granted custody?
Finally, our first child was conceived and born long before I was ever given any clue that he would one day join the military. I would never in a million years have had a child with a military man. Yet, once that child was born, for HIS wish I might add, he was free to join the military without my consent. Should he be permitted to play the “I’m serving my country” card to abandon me with his kids, refuse to pay child support, and then have the right after 2 years of such despicable behavior to return home and fight for custody of the kids I’m raising alone, both financially and emotionally?
The parent who is caring for the children while the other parent is absent, is in fact the most effective parent. In this case, this ’soldier’ USED the military to run away from home, not to serve his country. He abandoned them. One of them being ‘in utero’ at the time of the abandonment. How on Earth could it ever be considered to have a hearing to determine which parent should have custody of them? And why on Earth should I have to wait a year to get custody of my own children that I care for?
My CHILDREN have a RIGHT to have all of this HEARD now, not in a year.
First of all, no one with a family should even be permitted to join the service without the consent of the other parent.
Secondly, if soldiers or sailors want protection from child custody cases, they can’t expect to maintain their rights under the SCRA to avoid child support or paternity cases at the same time.
The military keeps dna of enlisted men on file, there is no need for them to be present for a paternity test, so the SCRA has no need to protect them from a dna case. There is also no need for him to be present for a child support hearing, since the amounts are direct percentages of income and as a soldier deployed overseas, his salary is what the military says it is and there is nothing to argue about or defend against. Custody will obviously be with the mother, unless the two have agreed on other arrangements, and I would concede that if the SCRA removed it’s protection in paternity and child support cases. As far as custody cases, with today’s technology involving the Internet, webcams, and live broadasting technology, there is no reason that the respondent cannot be, in effect, ‘present’ for those proceedings, because the court needs to take into account those mothers that did not bear ‘military children’ and did not give consent to raising those children alone while Dad was away. If he is able to arbitrarily decide to enlist without Mom’s consent, then Mom must be able to arbitrarily decide to take full custody of her children and move on with her life to find a father for her children who WILL be there for them, EVERY DAY.
Vanessa I’m so sorry that you’ve had such a horrible experience. For the most part, our Troops join the military as a way to provide a better life for their families. Very few are like the father of your children. He should definately be responsible for providing for his children. With his deployment, it may be difficult to get anything done until he returns to the US. I do know however, that once he returns the paternity tests can be completed and if it shows that he’s the father of your children, UCMJ has provisions in place that dictate what he must do to provide for his children. You should be entitled to child support and your children will be elgible for medical benefits through the military as well.
As far as him being able to participate in any hearings via teleconference, that’s not always possible. It depends on optempo, if there’s even VTC capabilities where he’s deployed to (example is that in some areas of Afghanistan, there aren’t such capabilities due to locale) and mission requirements. That’s why these hearings are delayed until the Soldier is back in the US and no longer on deployment.
I disagree with your statement that he should have to have your permission to join the military and I just don’t see that ever occurring. That’s his right as a citizen of this country and afterall, you aren’t married to him. I realize that it’s tough, but hang in there. Once he returns, you’ll be able to get things in order and your children should receive the benefits they deserve.