The intent of the Servicemember’s Civil Relief Act of 2003 (SCRA) is to protect the legal rights of individuals serving in the armed forces, with a stated purpose to: suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the nation. 50 App. U.S.C.A. §§ 501-596.
Under the SCRA, an individual engaged in active military service may request a stay at any stage in a civil action suit in which the servicemember is a party, including an appeal of divorce or custody proceeding. The court must grant the stay in a timely manner if it finds that the servicemember’s ability to participate in the suit will be affected by his or her active military engagements.
The initial burden required by most jurisdictions is the ability to show that the servicemember’s ability to participate in the proceedings is materially affected by their military status. However, some jurisdictions impose that burden on the party opposing a request for stay. In order to meet the burden, the attorney representing the servicemember should submit an affidavit which includes facts pertaining to whether the servicemember attempted to obtain leave to attend the expected duration of his/her deployment, and the expected date on which servicemember could be able to participate.
Helpful to meeting this burden is the submission of affidavit’s from the servicemember’s superiors stating the servicemember is unable to participate in the suit at the time. This also goes if the burden of proof fall on the resisting party – an affidavit from superior’s demonstrating availability is helpful to resisting the stay.
Some jurisdictions will also take into consideration whether the servicemember’s presence is essential to the determination of the issues involved. If you are the party resisting the request for a stay, discovery is permitted to obtain the relevant facts, including interrogatories, requests for production, and depositions by telephone. The resisting party can also emphasize the servicemember’s statutory right to 30 days of paid leave and the availability of military flights at nominal cost.
Even if a stay is granted by the court, however, they can impose conditions or limitations on the stay – i.e. a limited stay in order for the servicemember to make arrangements for leave or travel in order to participate in proceedings.