SERVICEMEMBERS CIVIL RELIEF ACT. Col John S. Odom, Jr. USAFR (ret.)

Transcription

1 SERVICEMEMBERS CIVIL RELIEF ACT Col John S. Odom, Jr. USAFR (ret.)

2 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

3 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.

4 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

5 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.

6 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

7 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

8 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

9 Mobilization Process Unit identified usually 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

10 National Guard may be different Natural disasters may call for shortnotice call-ups Hurricanes Tornadoes Critically important for single custodial parents in the Guard to have plans in place at all times

11 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

12 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 crahome.do

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15 Servicemembers Civil Relief Act 50 U.S.C. App b Alters the terms of conventional contracts Applies in ALL civil proceedings Applies to all courts and administrative agencies of federal, state and local governments

16 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

17 SCRA Mantra NO SELF- HELP

18 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

19 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

20 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

21 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

22 Section 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

23 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

24 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

25 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

26 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

27 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

28 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

29 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

30 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

31 The Turner Factor Finally achieved his amendment to SCRA on the eighth try New Section U.S.C. App. 528 added to SCRA Should not cause a change in determining best interests of the child

32 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

33 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

34 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

35 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

36 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 Bono Project

37 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

38 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

39 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

40 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

41 Reference work available A Judges Benchbook for the Servicemembers Civil Relief Act ABA Publishing index.cfm?section=main&fm=product. AddToCart&pid=

42 Questions? Colonel John S. Odom, Jr