Emergency relief in military custody case

Emergency relief in military custody case

Family Law Attorney David Kowalski of Kowalski, Wilson & Vang, LLC LLC

As discussed in an earlier blog, the Servicemembers Civil Relief Act (SCRA) grants servicemembers a “stay” or freeze of a divorce or child custody case until s/he can legitimately participate. Upon the servicemember’s request, the case must be suspended for 90 days. However, what happens if a real emergency makes a suspension unrealistic?

Earlier blogs discussed various ways for the civilian spouse’s to dispute the request for stay and have the case heard earlier. See https://kwvfamilylaw.com/servicemembers-civil-relief-act-in-wisconsin-blog-series-2/ and https://kwvfamilylaw.com/servicemembers-civil-relief-act-blog-series-3/ But are there any options in the servicemember legitimately meets all the requirements for a stay, and truly cannot participate?

Consider this scenario: the soldier finds out that she will be deployed to Afghanistan. Just before leaving, she refuses to return the children to the other parent, but instead leaves them with her sister in another state. She then leaves for Afghanistan, and the sister refuses to return the children. The father files a motion to force the children’s return, but mother files properly for a stay. The granting of a stay is mandatory upon proper request. Are the court and father powerless to act until the mother is available for a hearing?

First, most states have a kidnapping statute. In Wisconsin, it is section 948.31, which states that a person who “intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian” without consent is guilty of a felony. The police in either state may be effective in ensuring the child’s return to the parent if a court order is in place.

Second, if there is no court order, or the police are unable to assist, the civilian parent should file a motion to return the child. The legal arguments are limited, in light of the SCRA. However, judges do not usually look kindly on parents misusing military orders and regulations to circumvent court orders. Judges are also reluctant to wait idly while a child is left with a person who s/he may not know, and who has no legal authority to provide care. Thus, judges have found ways to “overrule” the automatic stay. These decisions often cite the state’s mandate to ensure a child’s well-being and enforce valid orders. The SCRA is designed to protect servicemembers, not to be used as a tool to harm a civilian spouse or a child’s well-being. Although of questionable legal validity, some decisions also state that a “stay” does not freeze the entire case, but permits limited temporary orders. Still other courts have ruled that a parent does not have the legal authority to grant care and custody of a child to a non-parent, so any attempt to do so is invalid, regardless of the SCRA.

The SCRA is not necessarily complicated, but does create some protections and restrictions on handling emergency situations. If deployment is a possibility, parents are wise to consult with an experienced family lawyer before an impossible situation arises.

Attorney David Kowalski routinely handles military divorces for both servicemembers and their spouses. Contact me at 608-709-5000 with any questions.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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