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.