The below requirements apply to any civil action or proceeding, including any child custody proceeding, in which the Defendant does not make an appearance.
A Plaintiff is required to let the Court know via an affidavit whether or not the Defendant is in military service or not.
The consequence of a Defendant being in the military are:
- the Court shall appoint an attorney for the Defendant prior to entering a default judgment; and,
- the Court shall grant a stay of proceeding for a minimum of 90 days upon application by the attorney or on the Court's own motion, if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant; or after due diligence, the attorney has been unable to contact the defendant or otherwise determine if a meritorious defense exists.
The above provisions can be found at this link.
The Court of Appeals of South Carolina in Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (S.C.App. 1999) held that the provisions of the Servicemembers Civil Relief Act's predecessor are mandatory, and the failure of a party or the court to comply, renders any judgment voidable.
The take away for me is that you will need to present the Court with an affidavit of military service for each named Defendant to eliminate the potential of the final order becoming voidable and do not name any biological father as a Defendant if he does not need to be named as a Defendant; serve him with the notice of adoption instead.
Please visit my blog post at Which Fathers Need to be Named Defendants in an Adoption? to help you determine if the father needs to be named as a Defendant; and visit my blog concerning notice requirements to determine who you must give notice of the adoption.
