Yes. The Servicemembers Civil Relief Act is not limited to lawsuits about money, and Georgia courts have applied it to fights over children.
A Georgia Case on Point
In Derby v. Kim, 238 Ga. 429 (1977), a soldier stationed at Fort Hood sought custody of his three-year-old daughter after the child’s mother died and the girl went to live with her maternal grandmother. He asked for a stay because he had used all of his leave for the year, and told the court he could appear the following month. The trial judge refused because no “material impairment” had been shown, and awarded permanent custody to the grandmother.
The Georgia Supreme Court reversed and ordered a new trial.
You Do Not Have to Prove You Would Be Hurt
Reversing, the Court applied a rule it had laid down decades before, that the statute “does not authorize a construction which would place upon the applicant the burden of proving that his ability to prosecute or defend the action is materially impaired.” Quoting the United States Supreme Court, it added that “[a]bsence when one’s rights or liabilities are being adjudged is usually prima facie prejudicial.”
Moreover, the Court said it should have been obvious from the issues to be tried, which were the father’s fitness and whether he had given up his parental rights, that his presence mattered.
A Caution About the Vintage
Derby was decided in 1977, under a version of the Act that Congress replaced in 2003. Not having to prove prejudice is not the same as not having to show why duty keeps you away, which is what the current provision’s two letters must do.
Congress Later Said So Expressly
The Act’s protection against default judgments now names these cases in its own text, reaching “any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance.” The Georgia Court of Appeals quoted that language in Smith v. Sanders, 360 Ga. App. 286 (2021).
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!