Deployed Parents Act: Rights of Non-Parents (Part 2 of 2) Part one of this article discusses the problems military parents faced before the Act, who qualifies for the protections of it, and what the benefits are. This article focuses on third parties (non-parents). Parents can make temporary agreements that allow non-parents to spend time with a child during deployment and ask the court to treat the agreement as a court order. Or, a judge will have a trial on the deploying parent’s request to appoint a non-parent to have temporary legal rights during deployment. Custodial Responsibility The Act uses Custodial Responsibility as a comprehensive term that includes any and all powers and duties relating to a child. The non-parent must be named a party to the lawsuit on a temporary basis during deployment. All types of Custodial Responsibility are available only to non-parents. The non-parent must be family member, including a sibling, aunt, uncle, cousin, stepparent, grandparent, or a person “recognized to be in a familial relationship with a child.” If the non-parent isn’t a family member, he or she must be someone with a close and substantial relationship with the child, meaning there is a significant bond between them. Without any formal agreement or a court order awarding Custodial Responsibility, no other person has any rights to visit or communicate with a child while a parent is deployed. Three Types of Custodial Responsibility • Caretaking Authority A court may grant Caretaking Authority to a non-parent only if it is in the child’s best interest to do so. A deploying parent who nominates someone to have Caretaking Authority is asking the court to let that person exercise the right to live with a child and care for that child on a day-to-day basis. It is roughly equal to physical custody and it includes the legal right to visitation, possession of a child for lack of a better word. It also includes the ability to make day-to-day decisions while the child is with that person, including the authority to designate another person to have limited contact with a child. For example, an aunt given Caretaking Authority may legally consent for the child to spend Saturday afternoon with grandparents during her weekend of visitation. Unless the parents agree, Caretaking Authority can’t give the non-parent more time than the deploying parent has in any existing custody order, or more than “the amount...
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The Deployed Parents Act: Protecting Parents (Part 1 of 2) By Amy A. Edwards In North Carolina, we’re fortunate to have the Uniform Deployed Parents Custody and Visitation Act, which helps military parents balance their military duties while they are deployed and their desire to maintain their bond with their children. Not only that, but the Act allows the child to preserve the relationship with deployed parent’s side of the family, or even an unrelated non-parent that the deploying parent nominates. Parents who reach an agreement about what will happen between the child and the non-parent during deployment can have the agreement treated as a court order if they take certain legal steps. But the Act also protects the military parent when there is no agreement. It also requires the court to offer an expedited trial to take place before a parent deploys. What the Act Does: Parental Rights Before the Act, if a parent temporarily surrendered custody as the military often required, his or her parental rights were seriously compromised from the viewpoint of the North Carolina courts. Surrendering custody before the Act put a parent at risk for losing permanent custody to the non-parent. Giving someone else custody of your child could be seen as acting inconsistently with your constitutional rights as a parent. Our state law simply didn’t have any solution to the problem. Now, the Act allows judges to enter temporary custody orders for the sole purpose of protecting military parents while they perform their military duties. The deploying parent can nominate a third party who is a non-parent, such as a grandparent or even a close family friend, to have limited rights in his or her place while that parent is gone. What the Act Does: Special Problems Military deployment isn’t convenient for anyone, including judges who may not deal with military parents very often. Judges make custody orders detailed and specific with exact dates, exact times, transportation arrangements and other things that are likely to be disputed. The more details a custody order has, the harder it is for a parent to “interpret” it when there is a question. For judges, it can be complicated to figure out how the parent and child can remain close while he or she may not even be on the same continent, in a situation where no one necessarily knows the important details surrounding the deployment. The...
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Collaborative Family Law: Are You Both on the Same Page? In the traditional setting of court, the parties are adversarial. This means they are on opposing sides of an issue, each competing for a ruling from the judge. Court tends to be a win/lose scenario. Instead of being adversarial and working against each other, the objective for both parties in Collaborative Family Law is to find a win/win solution to their dilemmas. The parties collaborate in an effort to create the best settlement they can. All four people, both parties and both attorneys, brainstorm in a series of what are called four-way meetings. Because the parties aren’t adversarial, the attorneys and parties discuss things among themselves in a civil manner during the four-way meetings. There is no cross examination. Instead of the courtroom, they usually meet in an office of one of the attorneys. How Does Collaborative Family Law Work? Collaborative Family Law (CFL) is an alternative dispute resolution authorized by the NC General Statutes. It is used only by the agreement of both parties and can be used for almost any type of family law dispute, including child custody and support, alimony, and equitable distribution of marital assets and debts. The attorneys and their clients sign a CFL pledge. In traditional family law cases, the spouse with more money to spend sometimes drags out the process forcing the other spouse to settle because they can’t afford to go to court. The CFL pledge includes a commitment not to “starve out” the other party. If either party decides to litigate (i.e., go to court), the CFL process ends and both parties have to hire new attorneys. This a built in deterrent for starving out the other party. However, the parties can include in their pledge an agreement to use mediation or arbitration if they can’t reach an agreement. By doing that, their attorneys can represent them throughout all three processes, CFL, mediation and arbitration, if necessary, never going to court. Am I Protected by My CFL Attorney? Yes. Attorneys facilitate the agreement meaning the parties take an active role in the case. If someone suggests a course of action that is not feasible or fair, the attorney advises him or her against it. Both attorneys meet with both clients in four-way meetings. But each attorney also meets with his or her client privately at his or her office. In fact,...
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What’s the Servicemembers Civil Relief Act (SCRA)? The Servicemembers Civil Relief Act is a federal law that is intended to support service members (SMs) while they are on active duty/deployed. In part, the law exists to prevent default judgments from being entered against a SM who is overseas and/or unable to manage his or her responsibilities related to the lawsuit because of his or her service. In some cases, it also offers general protections that include terminating a residential or vehicle lease early and limiting interest on bank loans, finance companies and credit cards to 6%. The Act also gives SMs the opportunity to seek a 90 day stay from the court. A stay essentially “freezes” a case so the SM can have additional time to concentrate on his or her military duties before addressing the lawsuit. The 90 day stay isn’t automatic. The SM must file a request for it. If applicable to the SM, the request may be for a stay that is longer than 90 days. What happens during a stay? Generally, nothing happens during a stay but it is possible the court could address “administrative” matters, such as checking the status of the SM’s ongoing duties to determine whether the stay should remain in effect after 90 days, for example. Because the SCRA is a federal law, every state must comply with it. If the SM is served with a lawsuit but is not given the opportunity to exercise his or her right to seek a stay, the consequences are serious. A judge’s ruling is at risk of being set aside (legally erased) later if a stay should have been given but was not. How Do SCRA Cases Get Started? The SCRA is triggered when a lawsuit is filed against a SM. In family law cases, this includes child custody or support, alimony and/or equitable distribution (marital property division). Courts in Pi County usually appoint a volunteer attorney to discuss the SCRA rights with the SM to determine whether he or she meets the legal standard for seeking the 90 day stay. If so, the attorney helps the SM file the request for the 90 day stay with the court. The attorney is only appointed to make sure the SCRA rights are protected, not to represent the SM in the case itself unless the SM chooses to hires that attorney for the case. Does the SM Qualify to Seek a 90 Day Stay? If the SM’s military duties materially (significantly) affect his or her right to defend the lawsuit because the...
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Servicemembers Civil Relief Act The Service Members Civil Relief Act is a federal law that gives certain service members (SMs) the right to get a stay, essentially “freezing” the court case for up to 90 days. If the SM’s ability to defend the case is materially affected by military duties, the judge will enter the stay to give the SM time to properly respond. An example of a situation that would apply is when he or she is overseas in a location that does not offer the SM any reliable way to communicate with the attorney or respond to subpoenas. When a lawsuit is filed, the person filing it must now add a signed affidavit, which is a sworn document confirming whether the other party is not in the military. Fortunately, that may be easier than you think if you have the date of birth and other personal info because there is a website that will confirm the status of service: www.dmdc.osd.mil/appi/scra Unless the SM makes an appearance in the case (files a response, etc.), the judge cannot enter an order without first appointing an attorney, who would protect the rights of the SM. The required NC Affidavit defines “military service” as: Active duty service as a member of the United States Army, Navy, Air Force, Marine Corps, or Coast Guard; service as a member of the National Guard under a call to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days for purposes of responding to a national emergency; active service as a commissioned officer of the Public Health Service or of the National Oceanic and Atmospheric Administration; any period of service during which a service member is absent from duty on account of sickness, wounds, leave, or other lawful cause. 50 U.S.C. app....
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