A highly contested child custody case can seem like it goes on forever. When an active-duty servicemember is involved, they can take even longer. But does the Servicemembers Civil Relief Act allow military parents to postpone child custody cases indefinitely? What can you do to make sure you have your day in court?
Child Custody Conflict Can Cause Years of Court Hearings, Even After Judgment
How long does a child custody case take? The short answer is that the Michigan Supreme Court has directed judges to enter a final order no later than one year after the complaint for custody or divorce is filed. But nothing is ever truly final when it comes to child custody, parenting time, or child support.
Michigan law gives family court judges the authority to modify and enforce existing child custody orders based on proper cause or change of circumstances until the youngest child in the order turns 18 (or 19 1/2 in the case of child support). For in high-conflict cases, this can lead to years of court hearings as parents continue to fight over court orders and jockey for position when it comes to “primary” custody.
When one parent denies parenting time, the court involvement can get even worse, from informal complaints filed with the Friend of the Court to formal motions for Orders to Show Cause and contempt proceedings. The process to get one parent to follow a court order can sometimes be harder than simply establishing that order in the first place.
Servicemembers Civil Relief Act Slows Down Proceedings for Military Parents
Now add in active-duty military service into the mix. A federal law, the Servicemembers Civil Relief Act (SCRA), says that a military parent in active duty can ask the court to delay (“stay”) proceedings if their assignment interferes with their ability to prepare for or show up in court. A recent Michigan Court of Appeals case, Johnson v Johnson, explains:
“The Statute requires that four pieces of information be provided. First, in a ‘letter or other communication’ there must be a factual statement ‘stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear.’ 50 USC 3932(b)(2)(A). Second, in a letter or other communication there must be a statement ‘stating a date when the servicemember will be available to appear.’ 50 USC 3932(b)(2)(A). Third, in a letter or other communication from the servicemember’s commanding officer, there must be a statement ‘that the servicemembers’ current military duty prevents appearance.’ 50 USC 3932(b)(2)(B). Fourth, and finally, in a letter or other communication from the servicemember’s commanding officer, there must be a statement providing ‘that military leave is not authorized for the servicemember at the time of the letter.’ 50 USC 3932(b)(2)(B).
If those 4 requirements are met, the SCRA says the court must put the case on hold for at least 90 days to give the servicemember a chance to participate in the case. That stay can be extended an additional 90 days if the servicemember shows a good reason to do so.
Military Parents Can’t Delay Child Custody Cases Forever
The SCRA gives military parents a chance to participate in child custody cases. It doesn’t let them delay the case forever. As Johnson shows, a military parent has to do more than just say they are busy serving their country to postpone the proceedings. They must show how their specific duties “materially affected” their ability to appear for the court hearing. In the modern era of technology, even being deployed overseas doesn’t automatically prevent a military parent from appearing by telephone in court.
Michigan family courts need to balance the federally mandated rights of military parents to participate in child custody cases and the best interests of the children affected by those cases. If Johnson stands for anything, it is that the longer a military parent tries to use the SCRA as a shield against denials of parenting time, the more the court is going to want to look for holes in that shield.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps families in Metro Detroit address and resolve child custody and paternity issues. If you need help modifying or enforcing a child custody order, contact Schmidt & Long to schedule a consultation.