Chairwoman Herseth-Sandlin and Chairman Boozman:

I would like to thank you for your leadership and consideration of this important bill, H.R. 4469.  

 H.R. 4469 will amend the Service Members Civil Relief Act to protect the custody arrangements of service members during their deployment as well as prohibit the use of deployment as a factor in determining the best interests of a child in custody cases.

Madame Chair, the stories are too clear and too frequent:  a service member, many times a single mom, is called to serve her country and is given a short time to wind down her personal business and deploy.  She makes temporary custody arrangements for her children usually with her ex-spouse, sometimes in the form of a non-binding family care plan.  Then, upon return from deployment, goes to pick up her child, and finds out that her ex-spouse won’t relinquish custody without a court order. 

Sometimes the story is even worse:  A service member in fighting for custody in court has their custodial rights terminated by a judge simply because of “deployment” or even “possibility of deployment”. Deployed parents, serving our country, in places like Afghanistan or Iraq, need protections from courts disrupting these established family arrangements.  We cannot have one branch of government asking American men and women to serve, while another branch of government punishes them for their service.

In the absence of consistent guidance, some states have become aware of this issue and some have taken action. In 2005, the state of Michigan passed a law to provide protection provisions to military personnel similar to the language introduced in this bill. I commend those states who have taken action on this issue.  However, almost half of all states have not passed protections for military parents, and for states that have, their protections vary, if they even exist at all.  A national standard is required.

This is why I have introduced H.R. 4469 to amend the SCRA to provide custody protections for military parents. Madame Chair, our men and women serve in a federal military that is regulated by the federal government.  These men and women sometimes reside in one state, but are stationed in another state, have marriage licenses in one state, divorces in another.  Disputing custody arrangements should not be an opportunity to shop for the best forum to take a child away from a military parent.

H.R. 4469 has passed the House on 4 separate occasions – 3 times as part of the National Defense Authorization Act, and once as a stand-alone bill.  As a stand-alone bill, this legislation was passed by voice vote on suspension with support from the Chairman of this Committee.   Additionally, every single member of the House Armed Services Committee, both Democrat and Republican, has expressed their support for this legislation.  Through the years, I have tried to resolve any concerns with this legislation and have inserted language that prohibits a federal right of action for custody cases, and expressly allows states to create an even higher standard of protection for service members.

Much is asked of our service members and mobilizations can disrupt and strain relationships at home.  This basic protection is needed to provide them peace of mind that the courts will not undertake judicial proceedings concerning their established custody rights while they are serving valiantly in contingency operations. Even one of these stories is one too many, and is justification to take action. A parent’s service to their country should not be used as a weapon against them. This amendment protects them and it protects their children.

Again, I thank you Chairwoman Herseth-Sandlin (SD) and Ranking Member Boozman (AR).

I yield back the balance of my time.

Air Force Association
Arlington, VA
July 28, 2009

The Honorable Michael R. Turner
1740 Longworth House Office Building
Washington, D.C. 20515 

Dear Congressman Turner:

The Air Force Association, a 501(c)(3) non-profit organization representing approximately 125,000 current and former Airmen and their families, is writing to express our support for protecting the child custody rights of deployed service members.

As you know, this is a difficult issue.  We all recognize the competing interests of protecting military children while honoring the sacrifices of those who wear the uniform.  Both are extremely important to our nation and its’ families.  For these reasons, we support the common-sense measures related to child custody protection in the House-passed version of the FY10 Defense Authorization Bill.  Section 584 contains provisions that balance these needs by granting courts limited authority to temporarily change child custody orders while servicemembers are deployed.  When they return, any changes are rescinded unless circumstances exist that are unrelated to ongoing military service within the family.  Under these rules, courts will not be permitted to consider military service a factor while deliberating any permanent child custody arrangements.   Because the legislation does not create a Federal right of action, nor does it inhibit the authority of states to enact stricter guidelines if they so choose, we believe states’ rights are adequately protected.  Though additional challenges may persist, this set of provisions strikes a balance between the safety and well-being of children and the need to respect military service.

The Air Force Association strongly supports this important step in protecting our servicemembers.  It is of the highest importance to Please contact Shane Barker in our Office of Government Relations at (703) 247-5800 ext. 4842 if we can further assist in achieving this important goal.

Sincerely,

Michael M. Dunn
President and CEO

[Identical letters were sent to Hon. Ike Skelton, Hon. Howard P. McKeon, House Armed Services Committee, and Hon. Carl Levin, Hon. John McCain, Senate Armed Services Committee.]

Association of the United States Army
Arlington, VA
26 August 2009

The Honorable Ike Skelton
Chair
Committee on Armed Services
2206 Rayburn House Office Building
Washington, DC 20515

Dear Mr. Chairman:

On behalf of the more than 105,000 members of the Association of the United States Army, I write to thank you and the Armed Services Committee for your efforts to protect the interests of service members in the FY2010 National Defense Authorization Bill.  

We are grateful to both chambers for their support of increased end strengths, a 3.4% military pay raise, TRICARE coverage for “gray area” Guard and Reserve retirees, and additional initiatives to improve conditions and benefits for wounded warriors and their families and caregivers.

In conference we request that you consider the following:

End Strength

AUSA very strongly supports the Senate provision that would authorize a 30,000 end strength increase beginning in FY2010, rather than waiting until FY2011.  We believe these additional troops are needed as soon as possible to ease operations tempo stresses on members and families and better meet the needs of commanders in the field. 

Concurrent Receipt

AUSA very strongly supports the House provision phasing out the disability offset to military retired pay for all members whose service-caused illnesses and injuries forced their medical retirement from active service.  This plan was a key feature of the President’s defense budget submission, and AUSA urges its retention in the final Defense Authorization Act.

Survivor Benefit Plan (SBP)

AUSA very strongly supports the Senate provision that would end deduction of Dependency and Indemnity Compensation (DIC) from SBP annuities when the member’s death is service-caused.  Congressional leaders have repeatedly cited fixing this “widow’s tax” as a top priority, and AUSA believes aggressive action is essential to substantively address that commitment.  

TRICARE Fees

AUSA very strongly urges retention of Section 706 of the Senate bill as a “Sense of Congress” provision in the final bill.  This section acknowledges that military health care is a primary offset for the unique demands and sacrifices inherent in a military career, that career service members have earned coverage levels commensurate with that sacrifice, that much of defense health cost growth reflect readiness requirements that are a “cost of doing business” for the Defense Department, and that the Department can and should pursue a range of other options to reduce health costs and rather than seeking to impose large fee increases on military beneficiaries.  This statement of congressional intent provides a vital foundation for discussion on this important benefit issue.

Reserve Retirement Age Credit for Post-9/11 Active Service

AUSA very strongly supports the Senate provision that would provide retroactive credit for active service since September 11, 2001 for the purpose of reducing the Reserve retirement age.  Current law authorizes a three-month reduction in the standard retirement age for each cumulative 90 days served on active duty, but credits only active service rendered since January 28, 2008.  

Military Parent Custody Rights 

AUSA very strongly supports the House provision that would help protect the custody rights of military parents while deployed.

Flexible Spending Accounts (FSA)

AUSA very strongly urges retention of Senate section 658 as a “Sense of Congress” provision in the final bill.  We are perplexed at the continued resistance of the Department to providing currently serving uniformed services beneficiaries the same FSA option afforded all other federal and corporate employees.  No one has greater need for dependent care than service members subject to frequent and extended deployments.  Thousands of Service families experience significant out-of-pocket expenses for dental care, eyeglasses and contact lenses, medication copayments, over-the-counter medications and more.  AUSA urges the Committees to pursue every possible effort to end the current discrimination against service members on FSA eligibility. 

Thank you for the opportunity to provide AUSA’s views on these important issues.

Sincerely,

GORDON R. SULLIVAN
General, USA Retired

GRS/rmw

Reserve Officers Association of the United States
Washington, DC.
August 10, 2009

The Honorable Howard P. McKeon
United States House
Committee on Armed Services
Washington, D.C. 20515

Dear Ranking Member McKeon:

I am writing on behalf of the Reserve Officers Association of the United States, chartered by Congress with a membership of 65,000, to express our support for protecting the child custody rights of deployed service members in the House’s version of the National Defense Authorization Act (NDAA), HR.2647, Section 584.

This is, as you understand, a critical and complex issue due to the contending interests to protect military children just as we honor service members who sacrifice a great deal, and both are vitally important to our nation. In favor of these reasons we support the much needed actions associated with the child custody protection section in the House Fiscal Year 2010 NDAA. This section provides partial authority to courts to protect children in cases that necessitate temporary custody but also secures service members’ rights while they are deployed on contingency operations. The legislation does not establish Federal right of action or hinder states’ authority. The provision affords the desired balance between children’s welfare and recognizing military service.

The nation that is able to bail out numerous businesses should do the right thing for those who are putting their lives and their families’ well-being at risk to defend their fellow Americans.  Our citizen-warriors are not asking for a hand out, only to protect their families who endure arduous and dangerous service to the country.  

The Reserve Officers Association strongly supports the House’s child custody protection provision and requests that you find the means to adopt it in the final version of the FY2010 NDAA

Sincerely,

Paul T. Kayye
Rear Admiral, MC, USNR (Ret.)
National President

Congress of the United States
Washington, DC.
June 16, 2009

Dr. Robert M. Gates
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000

Dear Secretary Gates:

We appreciate your interest stated during the May 13, 2009 House Armed Services Committee hearing to protect child custody rights for our men and women in uniform.

As you know, legislative language addressing this issue has already passed the House of Representatives three times. First, as Section 577 of the House passed FY2008 National Defense Authorization Act (HR1585). Additionally, portions of this legislation were also included in Section 584 of the final House passed version of the FY2008 NDAA (HR 4986). Finally, last year this language passed the House as a stand-alone bill (HR 6048) and was attached to the FY2009 NDAA. Nearly 60 members from both sides of the aisle signed on to HR 6048 as co-sponsors.

Today, the House Armed Services Committee passed their FY2010 NDAA. This bill contains similar language that would protect custody rights for military parents. As we move forward with the current legislative session and consideration of the FY2010 NDAA, we look forward to your continued interest in addressing this important issue to ensure that our men and women in uniform have their parental rights protected.

Sincerely,

The Military Coalition
Alexandria, VA
August 26, 2009

Dear Mr. Chairman and Mr. Ranking Member:

The Military Coalition (TMC), a consortium of uniformed services and veterans associations representing more than 5.5 million current and former servicemembers and their families and survivors, is grateful to you and the Armed Services Committee for your efforts to protect the interests of servicemembers in the FY2010 National Defense Authorization Bill.

We are grateful to both chambers for their support of increased end strengths, a 3.4% military pay raise, TRICARE coverage for “gray area” Guard and Reserve retirees, and additional initiatives to improve conditions and benefits for wounded warriors and their families and caregivers. 

The attached matrix highlights Coalition recommendations concerning selected differences between the House- and Senate-passed bills. Several priorities merit special mention:

End Strength

The Coalition very strongly supports the Senate provision that would authorize a 30,000 Army end strength increase beginning in FY2010, rather than waiting until FY2011.  We believe these additional troops are needed as soon as possible to ease operations tempo stresses on members and families and better meet the needs of commanders in the field.  We appreciate the Committees’ action in reversing force cuts for the active Navy and Air Force, but remain concerned that the Nation’s dramatically increased reliance on the Reserve components merits increases in those components as well.

Concurrent Receipt

The Coalition very strongly supports the House provision phasing out the disability offset to military retired pay for all members whose service-caused illnesses and injuries forced their medical retirement from active service.  This plan was a key feature of the President’s defense budget submission, and the Coalition urges its retention in the final Defense Authorization Act.

Survivor Benefit Plan (SBP)

The Coalition very strongly supports the Senate provision that would end deduction of Dependency and Indemnity Compensation (DIC) from SBP annuities when the member’s death is service-caused.  We recognize that there were some very modest adjustments in the tobacco legislation earlier this year, but those would bring no relief at all until FY2014.  Congressional leaders have repeatedly cited fixing this “widow’s tax” as a top priority, and the Coalition believes aggressive action is essential to substantively address that commitment.

Reserve Retirement Age Credit for Post-9/11 Active Service

The Coalition very strongly supports the Senate provision that would provide retroactive credit for active service since September 11, 2001 for the purpose of reducing the Reserve retirement age.  Current law authorizes a three-month reduction in the standard retirement age for each cumulative 90 days served on active duty, but credits only active service rendered since January 28, 2008.  Hundreds of thousands of Guard and Reserve members served one or more combat tours between 2001 and 2008, and this and other qualifying service during the current conflict merits equal retirement-age credit.  The Coalition believes this is the least America can do to recognize the truly extraordinary demands imposed on Guard and Reserve forces and families.

Mental Health Assessments

The Coalition very strongly supports the Senate provision requiring person-to-person mental health assessments for servicemembers deployed in support of a contingency operation.  We believe this is the single most important initiative in helping to detect and address PTSD, suicidal tendencies and other potential service-caused behavioral problems.  The Coalition believes limiting the initiative to a demonstration program would be insufficient to meet this pressing need.

TRICARE Fees

The Coalition appreciates the work of the Committees, in concert with the President, to protect the earned benefit of TRICARE from the imposition of higher fees, copays, or deductibles and we very strongly urge retention of Section 706 of the Senate bill as a “Sense of Congress” provision in the final bill.  This section acknowledges that military health care is a primary offset for the unique demands and sacrifices inherent in a military career, that career servicemembers have earned coverage levels commensurate with that sacrifice, that much of defense health cost growth reflect readiness requirements that are a “cost of doing business” for the Defense Department, and that the Department can and should pursue a range of other options to reduce health costs and rather than seeking to impose large fee increases on military beneficiaries.  This statement of congressional intent provides a vital foundation for discussion on this important benefit issue.

Absentee Voting Rights

The Coalition very strongly supports the Senate provisions to protect military absentee voting rights.  Hundreds of thousands of military and family members’ votes have not been counted in recent elections because of absentee ballot problems.  It is long past time for enactment of the specific initiatives outlined in the Senate provisions.

Flexible Spending Accounts (FSA)

The Coalition very strongly urges retention of Senate section 658 as a “Sense of Congress” provision in the final bill.  We are perplexed at the continued resistance of the Department to provide currently serving uniformed services beneficiaries the same FSA option afforded all other federal and corporate employees.  No one has greater need for dependent care than servicemembers subject to frequent and extended deployments.  Thousands of Service families experience significant out-of-pocket expenses for dental care, eyeglasses and contact lenses, medication copayments, over-the-counter medications and more.  The Coalition urges the Committees to pursue every possible effort to end the current discrimination against servicemembers on FSA eligibility.

Comparison of Military and Private Sector Pay and Benefits

The Coalition is concerned that comparison of military and private sector total compensation packages, as proposed in Senate section 602, has little validity absent a similarly detailed comparison of military and private sector working conditions.  Retirement, health, and other institutional benefits are essential offsets to the extraordinary demands and sacrifices of a service career.  Inclusion of the value of such benefits in a pay comparability equation is not a proper application, absent quantification of liability for repeated family separations, extended overtime without extra pay, frequent moves that disrupt spousal careers and children’s education, risk of death or incapacitation, and the forfeiture of many personal freedoms most Americans take for granted (e.g., inability to resign at will and risking a felony conviction for refusing an order).  It would count the cost of Combat-Related Special Compensation while ignoring the cost to the member of incurring the disability.  Compensation value is cash and benefits received divided by the service and sacrifice required to earn it.  If total compensation is 10% higher but requires 50% more sacrifice, the numerator comparison alone is highly misleading.

Thank you for the opportunity to provide the Coalition’s views on these important issues.

Sincerely,

The Military Coalition

(Signatures enclosed)

Attachment: TMC Recommendations on House/Senate Differences [The attachment is being retained in the Committee files.]

CC: Armed Services Committee Members

Copyright (c) 2008 Whittier Law Review
Whittier Law Review
Summer, 2008

29 Whittier L. Rev. 857

LENGTH: 13116 words

NOTE AND COMMENT: CHILD CUSTODY PROTECTIONS IN THE SERVICEMEMBERS CIVIL RELIEF ACT: CONGRESS ACTS TO PROTECT PARENTS SERVING IN THE ARMED FORCES

NAME: Christopher Missick*

BIO: * Christopher Missick is a Sergeant in the U.S. Army Reserve and was deployed from 2004-2005 with the 319th Signal Battalion in support of Operation Iraqi Freedom. He is a graduating student of Whittier Law School. "I want to thank my family for their unending support in all my pursuits, personal and professional. I would like to extend my gratitude to the Whittier Law Review editors and members that prepared this article for publication, including: April Szabo, Editor-in-Chief; Anna Barvir, Executive Editor; Tricia Engelhardt, Executive Editor; Krystina Tran and Peter Watson, Article Editors; and Melissa DuChene, Robert Beckerman, Sarah Hedberg, Graham Bentley, Sascha Topa and Afshin Mozaffari, cite checkers extraordinaire."

SUMMARY:

 ... For instance, popular tax and credit protections remained in the SCRA, but it provided for greater legal and financial support for the families of soldiers, and "expanded the definition of  'court' to include 'an administrative agency of the United States or of any State.' " Although these changes were important, child custody protection, one of the most significant changes necessary, was overlooked.  ... "In reviewing the cases it becomes clear that paternity, divorce and post-divorce cases comprised the highest percentage of litigation which arose under the SSCRA. " Due to deployments to Afghanistan and Iraq, the rate of divorce has continued to rise among servicemembers, leaving them vulnerable to losing custody of their children while deployed.  ... On June 8, 2005, Amber, counsel for Levi, and a trial judge signed an order amending the custody arrangement, subsequently awarding custody of the child to Starleen, and permitting reasonable visitation to Amber.  ... Congressional Amendment A spate of news articles, television interviews, and angry editorials, inspired in part by the story of Eva Crouch, led Representative Mike Turner to act to introduce an amendment to the SCRA that would protect the rights of military parents during deployments.  ... Typical of America's "laboratories of democracy," state governments have been enacting child custody protections for servicemembers for most of the decade; the result has been an effective patchwork of laws in states such as Michigan, Kentucky, and Arizona.  ... If courts liberally construe the protections provided to servicemembers by the act, Congressman Turner's amendments will likely ensure that only temporary custody arrangements are made while servicemembers are deployed.

TEXT:

 [*857]

1. Introduction

In May 2007, an Associated Press article documenting the large numbers of post-9/11 military servicemembers who lost custody of their children, due in part to mobilizations and deployments, set off a flurry of discussions, debates, and legislative action. n1 The measures taken by state governments meant slow but steady progress in protecting parental rights of servicemembers, but also highlighted the inadequate protections provided in Federal legislation known as the Servicemembers Civil Relief Act (SCRA). n2

In 2003, President Bush signed Public Law 108-189, n3 ushering in a new era of civil protections for America's armed forces under the SCRA. n4 The SCRA was an extensive modernization of the Soldiers and Sailors Civil Relief Act of 1940 (SSCRA), n5 a law left largely untouched since World War II. n6 The SCRA provided many new civil relief measures for deployed military personnel, while retaining some of the most popular elements of the SSCRA. n7 For instance, popular tax and credit protections remained in the SCRA, but it provided for greater legal and financial support for the families of soldiers, and "expanded the definition of 'court' to include 'an administrative agency of the  [*858]  United States or of any State.' " n8 Although these changes were important, child custody protection, one of the most significant changes necessary, was overlooked.

A distressing loophole in the SCRA regarding parental protections was exposed as servicemembers lost custody of their children during prolonged military deployments. n9 With an increasing reliance on military reservists and National Guard soldiers for service in theaters of operation like Iraq and Afghanistan, n10 the front lines of these custody battles have increased in civilian communities, far from large active duty military installations. The reliance on citizen soldiers has made the problem more readily identifiable because deployed soldiers are no longer clustered to specific regional or geographic locations. n11 In addition, with deployments of these personnel often lasting more than one year, n12 the impact has been that the civilian family law system is trying to apply an unfamiliar Federal statute to a problem that is very sensitive. An inherent conflict exists between placing the highest priority on the needs of the child and protecting those called to national service.

On May 5, 2007, an unprecedented Associated Press article brought the problem of servicemembers losing custody of their children during deployments to the forefront of our national political debate. n13 The article outlined specific cases where parents lost custody of their children. n14 It incorporated from the story of Lieutenant Eva Crouch, who stated, "my child was my life ... I go serve my country, and I come back and have to go through hell and high water [to regain custody]." n15 It invoked the heart-wrenching image of a weathered Captain Brad Carlson, sitting in uniform in a military Humvee holding a picture frame of his three smiling children, whom he can no longer see, and commenting that he felt " 'really betrayed.'  [*859]  " n16 It involved the story of Corporal Levi Bradley, who, while deployed near Fallujah, learned of the custody battle raging at home and became so distressed that he rolled the Humvee he was driving. n17 For a public dissatisfied with the war in Iraq, n18 but proud of its servicemembers' dedication and sacrifice, the article was poised to spread quickly and make a deep impact.

Consequently, on October 1, 2007, the Senate approved the 2008 Defense Appropriations bill n19, which had passed the House of Representatives on May 17, 2007. n20 The bill included an amendment introduced by Representative Mike Turner of Ohio, n21 granting limited civil protections to mobilized and deployed servicemembers facing hearings on the subject of child custody. n22 The President ultimately vetoed the 2008 Defense Appropriations Bill on December 28, 2007. n23 However, Congress revived the SCRA provisions in House Resolution 4986 n24 and, on January 28, 2008, the President signed the revised National Defense Authorization Act for Fiscal Year 2008. n25

This comment explores the roots of the SCRA and some of the cases that led to the public outcry over parental loss of custody during deployments. It then explores the changes made to the SCRA through  [*860]  the passage of House Resolution 4986, comparing them to state protections already in place. While the SCRA seems the most logical legislative vehicle through which to provide comprehensive national protections to servicemembers who are parents, it is not the only consideration when trying to protect servicemember parental rights. Therefore, this comment will address additional concerns that Congress should bear in mind when granting parental rights to servicemembers, who should never be forced to fight a battle on two fronts or sacrifice parental rights to fulfill a military obligation.

2. Historical Perspective

 Debate over civil protections for servicemembers has typically occurred prior to, or in the midst of, military engagements, as illustrated by the dates when civil protections have been enacted. n26 For instance, amendments to the SSCRA occurred during World War II, the Korean War, and the Vietnam War; n27 however, the first legal protections for servicemembers began nearly 150 years ago. n28

1. Civil War 

The United States has implemented some form of civil protection for soldiers and sailors since the Civil War. n29 On June 11, 1864, Congress approved one of the earliest pieces of legislation aimed at providing such protections. n30 The law served to protect soldiers from both civil and criminal litigation when their duties called them away to participate in military action. n31 The act also stated:

that whenever, during the existence of the present rebellion, any action, civil or criminal, shall accrue against any person who by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of judicial  [*861]  proceedings, cannot be served with process for the commencement of such action or arrest of such person.

 ... 

The time during which such person shall be beyond the reach of judicial process shall not be deemed or taken as any part of the time limited by law for the commencement of such action. n32

With this, Congress set a precedent, and several states followed with their own legislative acts to protect soldiers and sailors engaged in the war; for instance, many of the Confederate states enacted their own servicemember civil relief protections. n33 This led one "South Carolina circuit judge ... [to interpret the act as saying] "the State says to the creditor, (in a time of general distress,) you may not add to the calamity which overwhelms the land by harassing with lawsuits and sheriff's sales those who happen to be in your debt.' " n34 The 1864 act, however, is unique because it prevented both civil and criminal litigation throughout the duration of the Civil War. n35

2. The 20th Century

 As the 20th century introduced the notion of mass global conflict and international warfare with the "Great World War," the necessity for revised civil protections for servicemembers again became apparent. n36 In many ways, World War I laid the groundwork for provisions that provided "comprehensive" support for military personnel under the Soldiers' and Sailors' Civil Relief Act of 1918 (SSCRA of 1918). n37 The Act extended protection "to persons in military service ... in order to prevent prejudice or injury to their civil rights during their term of service and to enable them to devote their entire energy to the military needs of the Nation[.]" n38 It underlined  [*862]  provisions "for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the continuance of the present war." n39 The act expressly provided protections for general relief from judgments, n40 "rent, installment contracts, [and] mortgages," n41 insurance policies, n42 and taxes "falling due during the period of military service." n43 The SSCRA of 1918 expired six months after World War I ended. n44

By 1940, Europe was once again in a state of war and the United States would soon be embroiled in an intercontinental global war. On October 17, 1940, a few years before the United States was attacked at Pearl Harbor, the provisions of the SSCRA of 1918 were resurrected n45 and revised in the Soldiers and Sailors Civil Relief Act of 1940 (SSCRA of 1940). n46 Though this Act relied heavily upon the SSCRA of 1918, it included additional benefits with respect to public lands, changed the method of administering the provisions of guaranteed insurance premium protection, and raised from $ 50 to $ 80 the monthly rental of family dwellings in the noneviction provision (an increase of $ 30 after twenty-two years). n47

During the next fifty years, the SSCRA was altered, amended, and updated in a piecemeal fashion. n48

3. Development of the SCRA from the SSCRA

Operation Desert Storm created a new generation of veterans and forced a wholesale re-examination of the SSCRA. n49 It was the first war since World War II to require the use of large numbers of Reserve forces and National Guard members, as 50,000 citizen-soldiers were summoned to join their active duty counterparts. n50 For decades, the  [*863]  SSCRA was important to military personnel involved in family law disputes. n51 "In reviewing the cases it becomes clear that paternity, divorce and post-divorce cases comprised the highest percentage of litigation which [arose] under the [SSCRA.]" n52 Due to deployments to Afghanistan and Iraq, the rate of divorce has continued to rise among servicemembers, n53 leaving them vulnerable to losing custody of their children while deployed.

3. Analysis of the Author

1. Case Law Regarding Custody Disputes Under the Pre-Amendment SCRA

Servicemembers have faced a variety of custody disputes since the passage of the SCRA. n54 The nature of military deployments, where one parent is suddenly forced to leave for an extended period of time and custody arrangements are necessarily altered, has forced courts to examine these issues. n55 The impact of the 2008 amendments to the SCRA can be seen in the following cases.

1. Crouch v. Crouch, Custody Disputes Confronted in a CONUS (Continental U.S.) Mobilization

Crouch v. Crouch n56 garnered national attention for its straightforward facts and sympathetic character: a National Guard soldier and mother lost custody of her child after being called to active duty because of a system that offered no protection for the custody rights of deployed servicemembers. n57

Charles Jackson Crouch (hereafter Charles) and his wife, Kentucky National Guard soldier Virginia Eva Crouch (hereafter Eva),  [*864]  had their first child together in July 1994. n58 By December 1996, the couple divorced and agreed to share joint custody of their daughter. n59 The child lived primarily with Eva until February 2003, when she received orders to report to her National Guard unit within seventy-two hours. n60 Eva and Charles agreed that Charles would care for their daughter at his residence during the duration of Eva's expected one-year deployment overseas. n61

Instead of being deployed overseas, Eva was stationed at Fort Knox, Kentucky for a one-year mobilization that ended in February 2004. n62 She was then given an opportunity to attend Officer Training School for four months. n63 After speaking with Charles, Eva agreed to leave their daughter in Charles's care so the child could finish the school year before returning to live with Eva for the summer. n64

When Eva returned from active duty in July of 2004, she was ready to pick up her daughter and return to her normal life. n65 When she called Charles to inform him that she was picking up their child the next day, however, he replied, "Not without a court order." n66 As a result, she went to court to enforce the December 17, 1996 permanent custody order. n67 On August, 30, 2004, much to Eva's surprise, "the trial court entered an order finding that it was in the minor child's best interests to remain with [her father]." n68 The ruling stated:

The Court finds from the evidence that at the time the agreed order was executed it was the intent of both parties that the child would be returned to the physical custody of [Eva] at the conclusion of [Eva's] military alert. If the agreed order had been a contract for the sale of goods, the parties' intent would control as a  [*865]  matter of law. However, in the present arrangement the Court must consider the best interests of the child. n69

Eva, stunned by the ruling, said,  " 'we're not asking for any special consideration ... all we're asking is that our service not be held against us.' " n70 Eva's appeal reached the Kentucky Supreme Court. n71 The Court examined the language of the original 1996 agreement and contrasted it with the 2003 agreement, intended to last for the duration of Eva's active military obligation. n72 The 2003 agreement stated that the temporary custody situation was to be in place "until further Orders of the Court." n73 The Court determined that while this phrase "is generally construed to denote permanency, when the phrase is read in the context of this order, it could also be reasonably interpreted to indicate that the trial court will transfer custody back to [Eva] upon completion of her active military duty." n74

Eva's frustration with her custody ordeal reverberated throughout the country, leading many states to implement protections. Kentucky was one of those states. n75 By the time Eva's case had reached the Kentucky Supreme Court, the Kentucky legislature had enacted Kentucky Revised Statute section 403.340. n76 The law, entitled "Modification of custody decree; Modification based on active duty deployment to revert back on parent or custodian's return," n77 speaks directly to the issues Eva faced. Even though the law did not pass in time to have an impact on Eva's case, the Court recognized that its "interpretation of the February 10, 2003, order is consistent with the newly enacted [Kentucky Revised Statute section] 403.340 (5)." n78

The case produced discord among the members of the Kentucky Supreme Court. n79 Justice Scott's dissent focused on two important issues. First, he argued, in Kentucky,

 [*866]

the burden of supplying the affidavits required by [Kentucky Revised Statute section] 403.340(2) was on the Appellee [Eva], as she was the one moving to change the physical custody. Undoubtedly, the purpose of both statutes is to place the burden of proof on the parent seeking to modify custody so as to encourage stability in the custodial relationship. n80

Second, he examined the well-being of the child, who admittedly expressed a desire to stay enrolled in a school where she liked her teachers and had new friends. n81 Eva Crouch, now Eva Slusher, successful regained custody of her daughter, having devoted nearly two years and 25,000 dollars in legal fees to the custody battle. n82

2. In re Marriage of Bradley - Stay Proceedings in Custody Disputes

Not long after Amber and Levi Bradley were married, Levi joined the military and was shipped out for Boot Camp in June 2003; shortly thereafter, Amber gave birth to their son Tyler on September 8, 2003. n83 The couple lived with Levi's mother, Starleen, from their wedding day until April 27, 2005. n84 The circumstances surrounding the custody dispute began when Levi filed a divorce action on May 19, 2005. n85 In the action, "Levi prayed for sole custody of Tyler, with residential placement with his mother," in part, because Amber had embarked on a series of lifestyle choices that he claimed led to Tyler being improperly cared for. n86 In the aftermath of the divorce action, the couple decided to try to make the relationship work, so Amber moved to North Carolina to spend time with Levi, giving custody of Tyler to Starleen. n87

On June 8, 2005, Amber, counsel for Levi, and a trial judge signed an order amending the custody arrangement, subsequently awarding custody of the child to Starleen, and permitting reasonable  [*867]  visitation to Amber. n88 By the end of September, however, Amber attempted to change the order, arguing "she did not have counsel at the time she signed the order and did not fully understand what she was agreeing to." n89 This petition gave rise to the assertion of the SCRA by Levi, who requested a stay since he had been deployed to Iraq and was not scheduled to return until March 31, 2006. n90 The district court rejected this request, and found:

that temporary orders in this matter are not stayed by the Servicemen's Civil Relief Act. I believe this Court has a continuing obligation to consider what's in the best interest of the child. I do believe that judgments against a petitioner husband are precluded thereby but not what is in the best interest of this child and I believe the Court has the authority and will take up the Motion to Modify Temporary Orders. n91

After reviewing the history of this case in the introduction to its opinion, the Kansas Supreme Court applied the relevant sections of the SCRA to examine the District Court's finding that the SCRA did not apply to temporary custody orders. n92 The court looked specifically to section 522(b) of the SCRA, finding that the section gives the court the authority to grant a stay to any servicemember in a civil proceeding for  " 'not less than [ninety] days, if the conditions in paragraph (2) are met.' " n93 The conditions in paragraph (2)(A) require some communication describing how the military duties " "materially affect the servicemember's ability to appear,' " and providing an alternative date for appearance. n94 Section (2)(B) requires  " 'communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.' " n95

[*868]  The court pointed out that one of the problems with Levi's application for a stay was the lack of documentation in accordance with section 522(b)(2). n96 Even though he provided a document he referred to as  " 'orders issued on July 11, 2005,' " the document did not specifically contain Levi's name. n97 Instead, the document referenced a duty roster which included Levi's name as one of the soldiers being deployed to Iraq, but was not attached, so the court did not rely on it. n98

After examining case law regarding the SCRA, the court opined:

it also appears from the language of [section] 522(b)(1) that a court's discretion to grant a stay on its own motion depends on satisfaction of the statutory conditions-"the court may on its own motion ... stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met." n99

The court relied on the reasoning in the opinion of King v. Irvin n100 for additional support in requiring documentation. n101 Despite the obvious fact that both cases sought to apply the SCRA, the facts of King v. Irvin were much different from those confronting the Bradleys.

King, a naval reservist, had previously gotten into an accident, sued Irvin, and the case had been placed "on the trial calendar for the week of February 23, 2004." n102 King subsequently sought an SCRA stay of proceedings on the trial because he had received "military orders to report to duty on February 23." n103 The court continued the case until April 19, despite the fact that King had not attached his orders to his petition as he claimed. n104 At the April 19 hearing, counsel for King requested another continuance without providing any  [*869]  supporting documents. n105 The trial court denied the request and dismissed the case. n106

Courts are faced with a difficult proposition in interpreting a Federal statute that may be invoked only rarely before them. One of the troubling aspects of a lack of custody protection in the SCRA, however, is the fact that appearance in a personal injury case is treated similarly to a case addressing the custody rights of servicemember parents. In the closing paragraphs of its opinion, the Kansas Supreme Court addressed the fact that "where there is a failure to satisfy the conditions of the Act, then the granting of a stay is within the discretion of the trial court." n107

3. Lenser v. McGowan - The SCRA, "A Shield Not a Sword"

Following World War II, there was increasing concern that servicemembers would misuse the civil protections afforded to them. In Slove v. Strohm, n108 the court stated, "this Act may not be used as a sword against persons with legitimate claims against servicemen. Some balancing between the rights of the respective parties must be arrived at." n109 Some of these fears stem from the common-sense implications of extending too many benefits to servicemembers. For example, if credit protections were too generous, servicemembers may be denied credit opportunities because the financial risk to the creditor would be too great. More importantly, the well-being of children may be placed at risk if protections afforded servicemembers trumped current child-protection laws. Further, courts are loath to allow the SCRA to be used offensively as a tool for harassment or simply to frustrate another party. In Lenser v. McGowan, n110 the court found that a servicemember had improperly attempted to take advantage of circumstances by using the Act to gain custody of his children. n111

The circumstances of this case involved the breakdown of the marriage between Michael and Angel Lenser. n112 They had a child  [*870]  together, Carson Ray Lenser. n113 Michael and Angel legally separated in November 2003, but Michael returned to Angel's residence to visit Carson during Christmas. n114 Michael was ordered to return to Fort Hood, Texas on January 2, 2004 to prepare for deployment to Iraq. n115 After that, Carson lived with Michael's mother, Dorothy Hockey. n116

Meanwhile, a custody order was granted, awarding Angel custody of Carson. n117 In response, Michael asserted that: (1) he was entitled to stay custody proceedings pursuant to the SCRA, and (2) the court lacked jurisdiction to remove Carson from Dorothy's custody because the civil action should have been put on hold for 90 days. n118 The court explained that "nothing in the grant of a stay deprives a court of jurisdiction. To the contrary, a stay means that the court retains jurisdiction, but holds action on the case in abeyance." n119

The court then found that the domestic relations proceeding could be stayed, but that a temporary order giving custody to Angel was proper. n120 The court noted that the SCRA "does not put Carson in suspended animation. His life goes on, and the circuit court properly entertained the issue of who should receive temporary custody." n121 The court found that Michael was attempting to gain an advantage by arguing that all legal proceedings should halt the moment a stay is entered under the SCRA. n122 Essentially, Michael argued that since he had placed Carson with his mother, the stay should maintain that arrangement for the duration of the order. n123 The court concluded that had Carson perchance been with Angel when the stay was entered, it is doubtful Michael would be arguing as he does presently. To accept Michael's argument would create an environment in which a servicemember could always gain custody by simply making sure the child is staying with the  [*871]  servicemember when the stay is requested. That would provide servicemembers an advantage rather than protect against adverse effects. n124

Lenser illustrates how a servicemember may use the SCRA to gain an unfair advantage rather than to gain protection. The case also emphasizes the importance of maintaining the courts' ability to grant temporary custody orders, as well as the need to ensure that parents' fundamental rights to custody of their children are not abridged. Fortunately, Congress took many of these lessons and applied them to the 2008 Defense Appropriations Bill. n125

2. Differences Between the Congressional Amendment and Relative State Protections