Soldier, Sailor Relief Act? Custody?

[ogsbtater]

What is the name of your state? Mississippi

I currently have custody of my niece and her father is in the Army currently deployed. I have custody of her because her mother was about to lose custody to CPS (DHS). My brother signed and notirized a letter waiving his right to Soldier, Sailor Relief Act. He has denied her for the first 2 years of her life, defrauded ( I believe ) the Army to recieve monies for her and kept it for himself. He hasn't taken but a small amount of responsibility for her but know that he is engaged to a young lady with a child of her own. He has started showing intrest in having custody.

Here is my dilema: My nieces mother is about to take me back to court to get custody back and my brother says she can't do that because of Soldier, Sailor Relief Act. Does the waiver he signed stand or was it just for the temporary custody order I recieved. Also, can he use Soldier, Sailor Relief Act seeing as he doesn't have custody of her anyway?

He was not deployed when he waived his rights.

[RealAmerican]

First of all the Soldier and Sailor Relief Civil Relief Act does not cover the custody of children so I am not too sure where you were going with that. The increase on benefits for having a Dependant is truly not that significant. This seems like it is a post for the family law forum. The Soldier and Sailor Relief Act covers any debt incurred before service members enter into military service, it provides lower interest rates to assist military members. There are other provisions but none of them include the custody of children. In my limited experience the court will generally side with the biological mother, even if there is a slight case of neglect. You stated that the children were almost taken by CPS, be sure and bring any documents from the investigation or have the case worker testify to negligence of the mother. Your chances of keeping those children are not so great at all but you may be able to find some better advice from the members in the other forums on this board. Good Luck,

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

[fozzy2]

There is no simple answer. To start with, as per Section 107 of the act "A servicemember may waive any of the rights and protections provided by this Act." So the waiver would appear to be valid, and having it in writing helps head off an evidentiary dispute. (The waiver does not always have to be in writing, but it is much easier to prove a waiver was made if there is a written record).

More generally, child custody in the courts is a snakepit. I don't know about Miss. but there is no general rule on how each state will interpret the provisions of the SCRA as they apply to custody cases. As posted, SCRA was not designed to specifically deal with custody. For example, the ABA cites two cases (from two different states) that reached basically opposite conclusions as to the effect fo the SCRA on custody proceedings:
"compare Lenser v. Lenser, 2004 Ark. LEXIS 490 (upholding the judge’s grant of custody to the mother when the mobilized father requested a stay to keep physical custody with his own mother) with In reMarriage of Grantham, 2004 Iowa App. LEXIS 1257 (upholding judge’s stay of mother’s custody petition when father was mobilized and gave custody via his FCP to his mother). "

It appears that many states will pay close attention to the FCP (family care plan) which servicemembers are required to prepare prior to deployment. In addition, custody cases are very extremely oriented towards the "good of the child." Many people approach custody as though it were a property issue, but it isn't. My advice would be to get a lawyer and hang on for a potentially rough ride.

[ogsbtater]

He has never had custody of his daughter, therefor there was no need to include her in his FCP. The mother is taking me to court for custody, she isn't taking him seeing as he doesn't and never has had custody. My lawyer had him agree to let me have custody to keep any future problems from occuring. He has now married his girlfriend by double by proxy through Montana (he was engaged to a different girl up untill last Feb.) and she is the one pushing any custody issues. I know this is going to be difficult, I thank you for answering my questions, I just wish it would hurry up and be over with!