Under this section of the Servicemembers Civil Relief Act (SCRA), the servicemember has been served with a court proceeding and made an appearance. The request for stay may be made at any stage of the court proceeding. The SCRA has mandatory stay provisions for a minimum period of 90 days upon request of a servicemember, counsel or the Court’s own motion.
The Court shall grant this stay if the application for stay includes: “… (A) a letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear; (B) a letter or other communication from the servicemember’s commanding office stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.”
Responses to improper requests for stay include: (1) the servicemember’s current active duty military service does not materially affect his/her ability to appear and defend the proceeding; (2) the servicemember has not set forth any valid reason he/she cannot appear for the proceeding; (3) the servicemember has not provided the Court with an available date when he/she would be available to appear for the proceeding; and (4) the servicemember’s commander has not submitted a letter stating that the servicemember cannot make it to the proceedings or that the servicemember has no authorized leave to attend the proceeding.
Department of Defense Directive 1327.5 (6.25) “Leave and Liberty” Change 4 (September 10, 1997) mandates that when a servicemember requests leave to attend paternity or child support hearings, leave “shall be granted” unless the servicemember is serving in a contingency operation or “exigencies of service” require that leave be denied. A servicemember located in Oklahoma may not have a valid reason to request a stay under the act. With the advancement of technology, a servicemember located outside of Oklahoma should be able to communicate with CSS through e-mail, fax, telephonic hearings and may even be able to submit to genetic testing in other locations.
After the expiration of the first 90 day stay, the Court may enter an order if the servicemember does not apply for an additional stay based on continuing material affect of military duty in the same form as the first request for stay. The additional stay may be any length of time the Court deems reasonable under the facts.
If the court refuses to grant an additional stay, the Court must appoint counsel to represent the servicemember in the action.20 Since OAH has no authority to appoint counsel; CSE staff must transfer administrative actions to district court (Attachment 8)21. The servicemember is not afforded any special default judgment rights as set forth in Sec. 201 of the act, 50 USC §521. After appointment of counsel, the court may grant the additional stay if the facts warrant it or proceed with the final order.
In the case of a default, the SCRA does not require a Default Affidavit to be filed when an NCP has previously appeared. However, as a matter of practice, CSS files a Default Affidavit explaining that the NCP appeared in this action and has subsequently failed to reappear.