San Jose Divorce Attorney Discusses the Service Members Civil Relief Act
Unfortunately many soldiers and sailors are facing family court while preparing for a deployment or after they have been deployed for duty. The Service Members Civil Relief Act has shielded service members by staying civil court actions and administrative proceedings during military activation. This prevents evictions and seizure of property. However, the Act never specifically addressed family court matters and some family court judges refused to postpone custody decisions until the service member could appear.
President Bush signed a change to the Act into law this week which clearly states that deployed service members who seek a stay in custody disputes shall be granted at least a 90-day stay. It also protects service members against default judgments in custody proceedings while they are deployed. “It really should have been covered already,” according to Kathleen Moakler, director of government relations of the National Military Family Association, “but because family court judges were choosing to disregard that section Congress had to pass something and kind of underline it.”
The change was pushed by Rep. Mike Turner, R-Ohio, who read an Associated Press story last May that revealed the custody fights facing an unknown number of the 140,000-plus single parents in uniform. “Service members were protected if a bank foreclosed on their house or went after their car … but we had failed to protect their children,” Turner said. “It’s unthinkable that our men and women in uniform, when they’re deployed, would have the added stress of worrying about the custody of their children.”
Turner said he is hopeful the amended act will make judges think twice before using a military parent’s deployment as the primary reason for permanent custody changes. Still, some military lawyers and advocates worry that custody problems will continue for these service members unless similar protections are written into state laws, which generally govern family courts. If you are facing the possibility of deployment or if you have already deployed and our concerned about your custody case or your divorce then please contact our office. We assist several members of the military on active duty and we communicate with them via e-mail regularly and by phone when possible. We have offices in Monterey, San Jose, and Fremont where out attorneys would be happy to advise you on your family law matters.