5.11.2021

Service Member Protections in Family Law

 


 

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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