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This topic contains information on the following subjects:
1. Recommendations for interacting with military personnel;
In order to successfully manage the common difficulties involving interactions with military personnel, CSS caseworkers should adhere to the following recommendations:
1. Caseworkers should show respect for the military personnel and their mission at all times. Invoking civilian authority and making demands will often meet with resistance.
2. Valid limitations exist on the military's ability to respond to certain requests from CSS. Schedules and dates or locations of military exercises could be classified information.
3. Caseworkers should follow the chain of command when contacting military personnel and document all previous attempts to use other points of contact.
The Servicemembers Civil Relief ACT (SCRA), Public Law 108-109, strengthens the rights of servicemembers entering active duty by easing economic and legal burdens. Several of the SCRA provisions directly affect child support services. The SCRA applies to civil court actions, state and federal administrative actions, but not criminal proceedings.
The SCRA applies to active duty servicemembers. Armed forces reservists and National Guard members are also under protection of the SCRA when called to active service by the President or the Secretary of Defense for a period of thirty (30) consecutive days.
Servicemembers can sign a waiver if they agree for Child Support Services (CSS) to establish paternity and/or support when the NCP is unable to come to the CSS office or court. They must do this during or immediately after their period of military service, in a separate document that refers to the support order to which the waiver applies. CSS must attach the waiver to the support order.
A servicemember's legal representative has the authority to sign a waiver on his/her behalf. The SCRA defines the legal representative as an attorney working on behalf of the servicemember or an individual who possesses a power of attorney from the servicemember.
If the legal representative signs a waiver on behalf of the servicemember, CSS must attach a copy of the power of attorney to the waiver form. If the case is before the court, these documents should be submitted to the court as evidence.
When a court hearing has been initiated, the SCRA provides the servicemember with at least a 90-day automatic stay of proceedings if he/she supplies the court with a letter or other communication (e-mail, fax, or similar “permanent” type of communication) that includes:
1. The facts stating why current military duty prevents the servicemember from coming to court;
2. A date when the servicemember will be available to appear in court;
3. An additional letter or other communication from the servicemember's commanding officer, stating that the servicemember's current military duty prevents the NCP from appearing in court and that military leave is not authorized at the time of the letter.
Servicemembers can apply for an additional stay of proceedings based on their continuing inability to appear due to military duty. The same information that is required for the initial stay must be included in the later request.
Before the subsequent court hearing date, CSS should communicate with the servicemember and his/her commanding officer to make sure that the servicemember will be available at the next hearing. If necessary, the commanding officer should be reminded about DOD Directive 1327.5, which states that when a servicemember requests leave due to the need to attend hearings to determine paternity and/or establish child support, leave will be granted, unless the servicemember is currently deployed or in a situation that requires a denial of the request.
Requests for additional stay of proceedings by servicemembers are up to the court. If the court refuses to grant the stay, then the court must appoint an attorney to represent the servicemember.
If the court denies the initial request for a stay of proceedings or any later request for a stay because the NCP did not meet the criteria to make a request, then the court does not have to appoint an attorney to represent the servicemember. If this is the case, then the court can enter a final order.
The servicemember cannot request a stay of proceeding if he/she makes the request later than ninety (90) days after termination or release from the military service.
Child Support Services must file an affidavit with the court prior to the entry of default judgment that indicates whether or not the defendant is in the military, or that CSS does not know whether or not the defendant is in the military.
CSS should submit the affidavit to the court at the same time as the entry of the default judgment except when the servicemember has signed a SCRA waiver.
The Department of Defense (DOD) has a website where CSS workers can obtain a certificate stating whether or not an NCP is a servicemember. An affidavit can be based on this certificate, indicating whether an individual is a servicemember or not.
If it appears that the NCP is a servicemember, then the court cannot enter a judgment until after the court appoints an attorney to represent the defendant.
In addition, it is mandatory for the court to grant a stay of proceedings for a minimum of ninety (90) days if:
1. A defense to the action might exist that cannot be presented without the presence of the defendant;
2. The court-appointed attorney has been unable to contact the defendant; or
3. The court-appointed attorney certifies that a valid defense exists.
If the court-appointed attorney cannot contact the servicemember, actions by the attorney in the case do not prevent the servicemember from petitioning the court to reopen a default judgment.
If the servicemember later wants to reopen the default judgment, these conditions must be met:
1. CSS failed to file the prerequisite affidavit at the time of entry of default judgment;
2. The default judgment was taken against the servicemember during his/her period of military duty or within sixty (60) days of termination of active duty;
3. The motion to reopen the judgment was filed within at least ninety (90) days of the servicemember's termination from active duty;
4. The servicemember's defense to the action was affected by reason of his/ her military service; and
5. The servicemember had a valid defense to the action.
If it is determined that the servicemember's military duties affected his/her ability to comply with a court order or judgment that was initiated against that servicemember before or during active duty military service or within ninety (90) after active duty service ends, then the court can:
1. Stay the execution of any judgment or order entered against him/ her, and;
2. Vacate or stay any attachment or garnishment of property, money, or debts in the possession of the servicemember.
If the servicemember fails to move to reopen the judgment within ninety (90) days from termination of active duty, the order cannot be reopened.
The court has the authority to enter a temporary child support order, without having to follow the requirements of filing an affidavit and having to appoint an attorney for the servicemember. In addition, the court has the authority to enter other temporary orders, such as an order requiring the servicemember to submit to paternity testing or answer interrogatories.
A servicemember who is absent from a state in compliance with military orders is not considered to have lost residency in that state whether or not he/she intends to return to that state. The servicemember shall not be considered to have become a resident of any other state.
SCRA includes a provision guaranteeing that an individual's personal health insurance which was terminated because of entry into military service must be reinstated upon release from military service without any exclusions or waiting periods. The servicemember must apply for the reinstatement of the health insurance within one hundred-twenty (120) days after termination or release from military service.
The SCRA states that no interest rates above six percent (6%) can accrue while a servicemember is on active duty, nor can that excess interest become due once the servicemember leaves active duty. This affects child support obligations established in states that charge interest on arrearages. This provision forgives the payment on interest in excess of six percent (6%) a year on child support arrearages incurred prior to entering active duty. The state with the controlling order should be contacted if questions arise regarding arrearage computation.
Except in certain circumstances, the Department of Defense (DOD) does not respond to employment/payroll verification requests; however, the Defense Finance and Accounting Service (DFAS) will respond to written Freedom Of Information Act (FOIA) requests for the following types of information regarding active duty and reserve military personnel and DOD civilian employees:
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For questions or clarification on any of the policy contained in these manuals, please contact your local county office. |
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