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Military Service in the Domestic Law Context

Last week, the Charlotte Observer ran a story on a mother who was forced to fly back from Afghanistan to attend a custody hearing in Gaston County court. The story can be read here. Although the Observer story discussed a child custody case, the same issues could arise in a case for child support, alimony, postseparation support or equitable distribution. The difficult decision is whether the proceedings should be delayed (which may prejudice the civilian party and/or the minor child), or should continue in the servicemember’s absence (which may prejudice the servicemember).

The Servicemember’s Civil Relief Act (the “SCRA”) provides for a stay of court proceedings for at least 90 days upon a proper motion by the servicemember. The SCRA requires the servicemember requesting the stay to provide (1) a statement showing how the servicemember’s military duty affects his or her ability to appear, (2) a date when the servicemember will be available to appear, (3) a communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents his or her appearance and (4) a communication from the commanding officer stating that military leave is not authorized for the servicemember. If all 4 conditions are met, the court is required to stay the proceedings for 90 days. If the servicemember will be gone longer than 90 days, he or she may request an additional stay, which the court has discretion to either grant or deny.

One issue, however, is the way in which the SCRA relates to other laws governing domestic issues, such as child custody. There seems to be a legitimate argument that when a servicemember who is the primary caretaker is sent oversees for a length of time, that constitutes a substantial change of circumstances which may justify modification of the existing custody arrangement. The best practice would be to resolve the matter prior to deployment, but of course that’s not always possible. While the custodial parent has discretion over child care arrangements on a day-to-day basis, leaving the child with family members or others for a year is, in many ways, the same thing as granting custody to that third party. The law is quite clear in North Carolina that a natural parent has a right to custody of the child which is superior to the custody rights of third parties, unless that parent is unfit or has acted in a way which is inconsistent with his or her status as a parent. So, shouldn’t the civilian parent be granted custody, at least for the time the servicemember is away? On the other hand, if it has already been determined that it would be in the child’s best interests for the servicememeber to have primary custody, shouldn’t he or she be allowed to determine what would be best for the child while he or she is deployed?

Or, what about the dependent spouse who desperately needs postseparation support from the servicemember/supporting spouse? Should we require the servicemember to pay PSS without a proper hearing and opportunity to defend their suit? Or should we require the dependent spouse to go without support until the servicemember returns?

Unfortunately, there just doesn’t appear to be an easy answer to these questions. The best a judge (and the parties and their attorneys) can do is determine each case on its facts, and apply the SCRA, statutes and case law accordingly.