South Carolina BAR Journal
SC Lawyer, March 2012, #2.
The Military Parent Equal Protection Act
South Carolina LawyerMarch 2012The Military Parent Equal Protection ActBy Col. Barry Bernstein and Col. David GuytonThe federal government has traditionally provided legal protections for military personnel during periods of service, except in family court. Legal 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 fall outside these protections. Temporary orders, tactical advantages from deployment and interim issues can create overwhelming odds against the military parent. The inequities facing servicemembers in South Carolina family courts are now addressed by the Military Parent Equal Protection Act.
Historically, the federal government enacted military protections only for the duration of major conflicts. In 1917, the first comprehensive protections were drafted by Major John Henry Wigmore, better known for his treatise on Evidence. It was revived in 1940, made permanent in 1949, and with minor periodic changes remained until the enactment of the Servicemember Civil Relief Act (SCRA) in 2003. The SCRA greatly improved protections and addressed modern issues, but the area of family law remained unchartered territory.
Certainly family law has proliferated since World War I, when divorce was not even allowed in South Carolina. Modern concerns of parenting out of wedlock, women in uniform, fathers with custody and other family law issues were little known in prior conflicts. The nation has continuously been at war now for more than a decade, resulting in more clearly defined issues for military parents. However, the federal protections for servicemembers are not a resolution of issues involving child custody, support, visitation or other family court topics. Current military responses rely heavily on the National Guard and Reserves, bringing the impact beyond military bases and into communities throughout the country. The absence of federal protection in family court reflects the historical deference to each state for domestic litigation. Although national publicity of the problems and court cases began to arise, there have been few changes to federal law.
While change of custody is the most obvious concern, other issues of family court are found with military deployments. National Guard and Reserve members may have income fluctuation from civilian pay, necessitating adjustment of child support in hearings prior to deployment and again upon the servicemember's return. Visitation becomes an issue when the military parent is home for interim leave, only to be limited to standard visitation, giving the visiting parent as little as one weekend of enforceable visitation during a tumultuous year. When issues arise, the congested family court docket may preclude court access until after the return from deployment, making relief attempts moot. The expense associated with enforcing rights may make these issues financially prohibitive for many servicemembers. The absence of military parent protections needed to be addressed.
The Military Parent Equal Protection Act
South Carolina's Military Parent Equal Protection Act ("MPEPA" or the "Act") became law on June 2, 2009. S.C. Code Ann. 63-5-900 (1976). The name of the Act reflects the intent of the legislature to allow military parents equal footing with non-military parents in family court. It is divided into two sections, with the first section dealing directly with issues of military parents. The second section provides alternative means for servicemembers to participate in court while deployed.
General provisions. Each branch of the military is considered to be in the "military service." The term "deployment" is equally broad and not limited to an overseas or combat deployment. Both active military and reserve duty fall under the scope of the MPEPA. The Act focuses on the issue of military related duties interfering with the parent-child relationship. Therefore, the Act is statutorily broad to protect any military parent's forced separation from a child.
The Act contains provisions to encourage both parents to reasonably accommodate the military deployment, with enforcement mechanisms to discourage bad faith conduct. The parties may file a notice of activation and petition to modify a child support order. Specifically...