Practical Tips for Handling Children's Issues When One Parent Is in the Military
| Publication year | 2008 |
| Pages | 16 |
| Citation | Vol. 77 No. 6 Pg. 16 |
By Thomas D. Arnhold
I. Introduction
Several thousand Kansas citizens are currently serving in the U.S. military. Many of these individuals are members of the active component of the military and their official residence and domicile are in Kansas. Increasingly, Kansas members of the Army Reserve and National Guard are being deployed overseas for up to 18 months. These factors have spawned a number of cases concerning child custody, child support, and parenting time.
II. Determining Military Status
The first step an attorney must take is to determine if one of the parties is in the U.S. Military as defined by the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. Appendix § 501 et seq. The purpose of the SCRA is to allow military personnel sufficient time to respond to civil process and to appear at court hearings when their presence is inhibited by their military duties. The SCRA does not prohibit a trial, but does provide for continuances, appointment of counsel, and other protections.
Servicemembers who are covered by the SCRA include members of the Army, Navy, Air Force, Marines, and Coast Guard who are on active duty under 10 U.S.C. § 101(d) (1): members of the National Guard who are called to active duty as authorized by the president or secretary of defense for more than 30 consecutive days pursuant to 32 U.S.C. § 502 (f); and members of the Public Health Service and the National Oceanographic and Atmospheric Administration.[1] Not always will a client know if their spouse, former spouse, or other parent is a member of the military as defined by the SCRA.
There are several ways to determine if a party is in the military. One method is to inquire of a client if they have a copy of orders for the party in the military. In the case of a new divorce, the nonmilitary spouse has usually been given a copy of his or her official orders from the military spouse. However, where the parties are already divorced or have never been married, military orders are usually not available. Either party or the judge may request information from the Department of Defense (DOD) to ascertain if a person is in the military, and the DOD must issue a statement as to military service.[2] The DOD office to contact for such information is:
Defense Manpower Data Center
1600 Wilson Blvd., Suite 400
Attn: Military Verification
Arlington, VA 22209-2593
Tel: (703) 696-6762
Fax: (703) 696-4156
III. Service of Process
A. Service within the continental United States
Kansas law provides that an individual must be served personally, by registered mail, or in a few limited instances, by publication. Of course, any individual may enter their appearance by executing an Entry of Appearance. The typical scenario is that an attorney is seeking to serve a member of the military who either resides on a military post or outside the military post in civilian housing. If a member of the military lives off-post, then the Kansas Code of Civil Procedure applies. In that instance the military member may be served by personal service or by registered mail. There are no additional requirements imposed, merely because the individual is in the military.
Generally a servicemember may not be served by a state or private process server on a federal military base or post. A federal fort or other military base is considered a federal enclave and a soldier or sailor may not be served with process by an individual appointed by a state to serve process. However, the Code of Federal Regulations does allow service on military members in some circumstances. The Army[3] has a separate regulation concerning service of process on an Army post than does the Navy and Marines.[4]
Military officials have no responsibility or obligation for serving process on military personnel on or off a military post. Military police, the criminal investigation division, or any other military entity may service process. However, a soldier or sailor's commander can be very helpful in obtaining service. An attorney can send court pleadings and an Entry of Appearance to a unit commander and request assistance having the servicemember sign the Entry of Appearance and return it. Military commanders can also make the servicemember available for service of process by a local process server.
Another resource is to utilize the services of a private process server near the military base of the soldier or sailor being served. This can be done through the local yellow pages or over the Internet. Many private investigators advertise that they serve members of the military. Many private process servers and local government process servers have excellent relationships with military commanders, which makes process serving easier.
Another method of service is to wait until the servicemember returns to visit the children and have them served personally. This can be done by utilizing the sheriff's office or by employing a private process server. This works well if the servicemember is the noncustodial party and service of process is not time-critical.
B. Service outside the continental United States
American military personnel are stationed throughout the world, and serving them with process can appear to be an insurmountable obstacle to an attorney. Serving military personnel overseas is difficult, but not impossible. All members of the military stationed overseas are given either an Army Post Office (APO) or Fleet Post Office (FPO) address. Technically these are U.S. mail addresses and can be used to serve the servicemember by registered mail. However, the soldier or sailor may not sign for the registered mail. To further complicate matters, military postal clerks some times do not return the receipt or send back the receipt signed by someone other than the servicemember.
The U.S. Postal Service (USPS) has a manual on international postage rates or fees. Often local USPS personnel have experience with serving servicemembers by registered mail and can provide advice. If all else fails, place the documents to be served, addressed to the person to be served, including the correct address, affixing the proper postage, and return receipt in an envelope. Place this inside a larger envelope with the APO or FPO address of the...
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