Reserve and National Guard Issues in Family Court Part 3. THE MILITARY PARENT EQUAL PROTECTION ACT

Third in a series of articles addressing Reserve and National Guard Issues in Family Court

By Barry J. Bernstein*

     Special protections for servicemembers have been available for more than a hundred years. While well established for general litigation, the emergency interests and established procedures of family court frequently fell outside these protections. Temporary orders, tactical advantages from deployment and interim issues created overwhelming odds against the military parent. These inequities were addressed in South Carolina by the Military Parent Equal Protection Act.

      I have a particular interest in this Act because I drafted the legislation.  I had Soldiers deployed without time to get relief from the Family Court.  I personally dealt with DSS where they had an Airman agree to an increase in child support due to his increased income while deployed, only to have DSS not consent to reduce it when he returned to his old civilian income.  I heard of Servicemen coming home to permanently lose custody to a “temporary” arrangement with the non-custodial parent, even using the deployment as the reason.  I heard of Soldiers return for leave from a combat zone, only to have their child “unavailable” during the short period of leave.   
 
      I drafted legislation, and a state senator introduced the bill.  That senator retired, but it was reintroduced and passed into law in 2009.  The entire intent of the Act is to avoid punishing military parents for being mobilized.  These are the major provisions:  

         Temporary modification of orders.  If a Reservist or Guardsman is mobilized, then:

• “an existing order… may be temporarily modified to make reasonable accommodation for the parties because of the military parent's service.
• “a temporary modification automatically terminates when the military parent is released from service and…the original terms …are automatically reinstated.
• “a military parent's income during military service must not be used to determine the military parent's income or earning capacity.”

          Accommodate leave status. “(T)he nonmilitary custodial parent shall make the child or children reasonably available to the military parent when the military parent has leave to ensure that the military parent…is able to visit the child or children”
          Expedited hearings.  “If there is no existing order…of custody or visitation…the court shall expedite a temporary hearing…and provide other appropriate relief.” 
         Reinstating old orders. Upon return from military service, the military parent's child support obligation prior to a temporary modification is automatically reinstated, effective on the date the military parent is released from service.
          Attorney fees.  While attorney fees are always a consideration in Family Court, the Act specifically addresses this issue.  Those that thwart the intent of the Act can be ordered by the Court, with contempt powers, to pay the other party’s attorney fees.

      I am very proud to have been a part this law taking effect.  The title of the Act was named to explains its intent.  Military parents should have equal protections, keeping them on equal footing in court, even when mobilized! 



       I co-authored and article in the South Carolina Lawyer which gives a more in depth background for attorneys.  (March 2012, “The Military Parent Equal Protection Act,” by Col. Barry Bernstein and Col. David Guyton
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     While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
* The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.