With the recent tragedies in our country and the political season in full gear, the right to bear arms is a hot topic. At the same time, I’m sure many others like myself have friends or loved ones currently deployed or actively serving our country. There are common protections in place for our service members which are well known and receive a lot of publicity – the right to bear arms, specialized equipment, uniforms, gear, and so forth.
Less publicized, however, are the laws in place to protect our service members in civil actions. Imagine returning home from deployment to discover all of your possessions have been taken, there is a pending lawsuit against you, or your child support payments have been increased. For a common example I see often in my practice, consider a divorced couple with children. One of the ex-spouses is a soldier and gets deployed overseas. Simultaneously, the non-soldier parent files a motion with the Court to increase the soldier parent’s child support payments. The Servicemembers Civil Relief Act (SCRA) protects soldiers in situations such as this. Specifically, the SCRA requires that the Court postpone the pending lawsuit until the soldier is discharged from active duty so that the soldier can focus his/her energy on defending the United States.
The SCRA covers three main areas: (1) protection against the entry of defaults judgments; (2) stay of proceeds where the servicemember has notice of the proceeding; and (3) stay or vacation of execution upon judgments and garnishments.
In family law cases, not only can the active military member temporarily stay the family law litigation (e.g. child support, child custody modification, etc.), the soldier or soldier’s loved ones can petition the Court to assign the soldier’s parenting time to the soldier’s loved ones while the soldier is on active duty. For example, if the divorced, deployed soldier has children and generally parents the children every other weekend and two nights every week, the soldier’s parents or new spouse may petition the Court and ask that the soldier’s parenting time be temporarily assigned to him/her so that the child maintains a steady routine with the soldier’s side of the family.
Iowa Code Section 598.41D requires that the temporary assigned caregiver for the child prove he/she: (a) is not a sex offender; (b) does not have a history of domestic abuse; © does not have a record of founded child or dependent adult assault; (d) has an established relationship with the child; and (e) is able to personally and financially support the child, and will support the child’s relationship with both of the child’s parents during the assigned parenting time.
A child should not be estranged from the soldier’s family just because the child’s parent is on active duty. There are bills currently pending in our legislature to enhance and improve the SCRA which, if passed into law, will provide additional protections for servicemembers. Therefore, it is important to know your rights not only if you are a servicemember, but family of a servicemember.
The information contained herein is for informational purposes only, and is not legal advice or a substitute for legal counsel. You should not act or rely on any information herein.
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