The Servicemembers Civil Relief Act: What Active-Duty Soldiers in Custody Battles Should Know

The Servicemembers Civil Relief Act ("SCRA") provides for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.

In one of the most recent cases I worked on in Maryland, the opposing party had managed to obtain default judgment against our client. The court granted custody to the opposing party and entered an earnings withholding order for child support. However, our client was on active duty in the U.S. Navy when the court entered these orders. The opposing party misled the court and did not disclose that our client was on active duty. Less than a month later, I drafted a motion asking the court to strike its custody and withholding orders against our client, using the SCRA as the legal basis. After considering the plaintiff's opposition to our motion (and our reply to that opposition), the court ordered its previous custody and child support orders stricken. Here's how it worked.

Before a court enters default judgment against a defendant, the SCRA requires the plaintiff to file an affidavit stating 1) whether or not the defendant is in military service and showing necessary facts to support the affidavit or 2) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service. The plaintiff knew our client was serving, but filed an affidavit stating otherwise.

The SCRA requires a court to stay proceedings for a minimum period of 90 days if the court determines that 1) there may be a defense to the action and a defense cannot be presented without the presence of the defendant or 2) after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists. Our client's defense was that he had a constitutional right to the care, custody, and control of his children and that the plaintiff's actions infringed upon those rights. Furthermore, opposing counsel did not do his due diligence in investigating the claims of his client, the plaintiff.

However, the SCRA's provisions concerning setting aside default judgments made this a relatively easy motion to draft for our client. Under the SCRA, if a default judgment is entered against a servicemember while the servicemember is serving, the court entering the judgment must, upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the servicemember to defend the action if it appears that 1) the servicemember was materially affected by reason of that military service in making a defense to the action and 2) the servicemember has a meritorious or legal defense to the action or some part of it. Again, our client was actively serving in the U.S. Navy, was able to offer evidence of his active service and the opposing party's knowledge thereof, and his defense was based on the infringement of his constitutional rights by the plaintiff (and her counsel).

Military servicemembers are particularly susceptible to gamesmanship by opposing parties and their counsel. If you are a servicemember with a pending divorce or child custody case and need help understanding any step of the process, please schedule a consultation today. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the Firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.