Protecting Child Custody for Massachusetts Military Servicemembers

| May 7, 2018 | Military Divorce |

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The Soldiers’ and Sailors’ Civil Relief Act was passed at the start of World War II to provide legal protection to those serving in the military. Congress later passed the Servicemembers’ Civil Relief Act (SCRA) in 2003 to update the original legislation in order to better reflect modern times.
SCRA law recognizes that servicemembers, like all other U.S. residents, may become involved in civil conflict or family law, often by filing for divorce or being served divorce papers. However, when legal conflict arises, it is particularly difficult for these servicemembers to protect their legal rights when they are involved in training, deployed on assignment, or otherwise required to focus all of their energies on national defense.

Given these considerations, SCRA requires state and federal court judges or judges in administrative proceedings to grant a “stay of proceedings,” or postponement of the civil legal proceedings, until the servicemember becomes available to participate. This ensures the servicemember has an equal opportunity to develop and litigate his or her legal case.

Avoiding Adverse Ruling Before Proceedings Begin

In order to prevent the entrance of a default judgment or other adverse ruling against the military servicemember, before the servicemember makes an initial appearance in court, the adjudicator must investigate whether the individual is not present due to military service. The adjudicator can check into a possible servicemember’s military role by consulting information provided by the U.S. Department of Defense.

Qualifying for a “Stay of Proceedings” after Proceedings Begin

In order to qualify for the stay of proceedings remedy, the servicemember must file a request stating that military service has a material effect on the servicemember’s ability to defend him or herself in litigation. The statement should also include a suggested reschedule date and a confirming statement from the military servicemember’s commanding officer. Case law interpretations of the SCRA, along with the Act’s stated purpose, suggest that the terms should be construed liberally to protect servicemember’s interests.

SCRA and Divorce Proceedings

SCRA may stay proceedings in family law matters such as divorce, child custody or paternity proceedings. A family law attorney may present a motion to request stay of the proceedings or a judge may decide to grant the stay independently.

For more on different considerations that affect child custody and child support order modification proceedings, it is helpful to consult an experienced military family law attorney.

The Law Offices of Renee Lazar has experience in handling military family law issues. Contact our office today at 978-844-4095 to schedule a FREE one hour no obligation consultation for more information on how we can help you. 

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