This guest post is from Amanda Faust, current United States Navy
service member and Regent Family Law student:
Not many outside of the
military are familiar with the Servicemembers
Civil Relief Act (SCRA) and, if you ask military members about it, you will
probably hear that it is a way to get interest rates lowered to 6% on all
pre-service loans, but it is so much more than that.
SCRA protects the service
member against default judgments, non-judicial foreclosures, repossessions,
lease terminations penalties when transferred, and enforcement of liens during
the service member's time in service. The protection against default
judgments section refers to "all civil actions" which includes family
law matters. Every state has its own laws regarding family law and
domestic relations, but the SCRA is a federal law so it applies to civil
actions in all states. One amendment to the SCRA implemented in 2014 by
the passage of the Defense Policy Bill specifically added language regarding
service members and child custody. This amendment prohibits courts from
ruling against a service member in issues of custody regarding their children
due solely to current or future deployments. Although this amendment had
been previously proposed, the catalyst for it being passed is said to be
the Hindes case.
In 2013, ITS2(SS) Matthew
Hindes was a submariner (Sailor stationed on board a submarine) in the U.S.
Navy. His daughter was born in 2008 and he and his wife separated not
long after. Child Protective Services removed his daughter from his
wife’s custody due to allegations of abuse and neglect by the mother and her
then boyfriend. A criminal charge was filed against the mother to
which she pleaded no contest and was given a sentence of 10-days in jail
and two years' probation. Hindes was then awarded full custody of their
daughter in 2010, and the mother eventually was awarded one weekend a month
visitation with the child. Hindes later remarried and, when he deployed
in 2013, left his daughter with his wife. Upon not getting the visitation
on one of her weekends, the mother found out that Hindes was deployed and took
that opportunity to file a suit for custody. In the first appearance,
Hindes's attorney reminded the court that, under the SCRA, judges have to give
at least a 90-day stay in cases where a service member isn't able to attend a
civil suit due to his or her service in the military (provided he or she
requests the stay and shows proof of unavailability). The judge
nevertheless issued an order to appear or present the child within two weeks
although Hindes was deployed, claiming that Hindes did not have to be there to
“present the child” because his wife could bring her. This was a blatant
disregard for the SCRA. The judge even went as far as to issue a bench
warrant for failure to appear AFTER receiving the letter from Hindes's command
stating he was deployed and unable to attend the trial. A few days later,
the judge rescinded the bench warrant and issued a stay in the proceedings;
however, she later continued holding proceedings in the case, even issuing a
temporary order giving the mother custody until the father returned from the
deployment, stating that if a child cannot be with one parent, he or she should
be with the other parent. This order mandated that the stepmother deliver
the child to the mother, defying the previous custody order and the SCRA. This forced Hindes's attorneys to file a
request with the Court of Appeals to enforce the stay, causing the stepmother
to have to defy a court order out of fear for the child’s safety.
Eventually, the parents were
able to come to an agreement regarding the visitation schedule after Hindes
returned and the case was dropped. Had the stepmother not had the
courage to defy the temporary order, nor access to the attorneys fighting for
this little girl, that child would have been returned to a mother who had
already pleaded no contest to accusations of physical abuse for months before
the father returned home.
Although the mother still gets visitation with the child, it is not without monitoring as would have been the case if the temporary order had been followed.
Thanks to the Hindes case,
the verbiage in the SCRA amendment now specifies what a court can and cannot do
in custody cases regarding children of service members who are unavailable due
to their service, prohibiting a judge from unfairly penalizing a parent during
his or her service to our country and possibly putting a child’s safety at risk.
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