Service Men and Women Can Be at a Disadvantage in Family Disputes


The very men and women who protect our country are not always getting that protection back when it comes to family disputes involving an allegation of domestic violence or sexual crime. Unlike in state civilian courts, a military commander can issue a protective order (or restraining order) limiting access to the service member's children or spouse without so much as a hearing. The order can be in effect for months or even years without the service member ever getting a day in court. Orders put in place in a civilian court don't impact military orders, so even if the service member can show in civilian court that a restraining order is not justified or show that the order should be less restrictive, the military protective order stays in place.

In some cases, not even the 'protected person' wants the order but the commander can issue an order without input from either party in the case. This can be tremendously disruptive for families where a spouse or child wishes to continue having contact with the restrained family member. The result can be that service members have a much heavier burden than their civilian counterparts when it comes to reuniting families after allegations of abuse. The military member may not only have to convince the judge that the order is not justified but also his commander. Convincing the commander can be the hardest part.

In contrast, both people involved in a restraining order case in California civilian courts are allowed to examine each other's evidence, present their own evidence, and argue their case to the judge. A judge can issue a short-term restraining order before the hearing, but per the Family Code the hearing must be scheduled within 25 days. The difference between civilian judges and military commanders should not be surprising. After all, judges are in the business of conducting hearings and deciding disputes between people while commanders are in the business of fighting battles. Protective orders and personnel decisions are a minor component and potentially even a distraction from a commander's main purpose.

There are things service members can do. They can take their case to federal courts. Federal courts are typically reluctant to interfere in military matters, but they can intervene in cases where the harm to the service member outweighs the military's interests and there is little need for specialized military knowledge. Family law disputes are exactly these sorts of cases: the potential harm to the military family is extreme while the military's interest is minimal and no military knowledge is necessary to issue a protective order (something civilian judges do all of the time).

In these cases, it is essential to have an attorney that not only understand the laws, but also understands the culture of the military. The price tag to fight these cases can add up but a law created by Congress a few years ago can help defray those costs. Under the Equal Access to Justice Act (EAJA) a successful litigant can recover a substantial portion of their attorney's fees if the position of the United States was not “substantially justified.” Although the EAJA won't typically cover all expenses, it can go a long way toward bringing the necessary legal firepower in reach, and ultimately reuniting a family.

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