The application includes a communication from the servicemember’s commander that the military duty prevents appearance, and leave is not available.
The initial 90-day stay is mandatory. Thereafter, the servicemember may apply for a longer stay. The same criteria is used to evaluate any request for a longer stay. The court may deny an additional stay. However, the court is required to appoint a lawyer to represent the servicemember if a request for a longer stay is requested.
It is important to emphasize that simply being stationed overseas, thereby making it more expensive to appear, does not materially affect a servicemember’s ability to appear at court. Many servicemembers are permitted to take a leave from their duties. The family courts are well aware that servicemembers accrue 30 days of leave per year. DOD Directive 1327.5 section 6.25 provides in pertinent part:
When a servicemember requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave.
A servicemember who invokes this protection must justify the need for a stay, and have his base commander write the request. Please keep in mind that the family law courts in New Jersey which also has several military installations, work with servicemembers by allowing telephonic testimony, or scheduling hearings during periods of authorized leave. The result is that military personnel are protected, but family law proceedings can still continue. Finally, if a request for a stay is denied, the servicemember cannot then invoke the protections of the SCRA to try to set aside the default judgment.
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