Father and Mother had joint custody of child, who was living in Kentucky with Father during the school year. Mother resided in Montana. Father was given notice he was being returned to active service in the National Guard Air Force in September 2014. In December, Mother filed a motion for temporary primary residential custody citing Father’s deployment as a substantial change in circumstances. Father filed a motion to stay the proceedings under the Servicemembers Civil Relief Act (hereinafter “SCRA”). The Trial Court denied Father’s SCRA motion, and held a hearing in January 2015. The Trial Court ordered the child reside with Mother as the temporary residential custodian, until Father returned from deployment. The Appellate Court notes that in making this decision the Trial Court failed to utilize the best interest of the child standard, as required. Active duty deployment is the base for a substantial change in circumstance, but does not eliminate the need to use the best interest standard.
The Appellate Court grants a writ of prohibition holding Father made a showing the Trial Court acted erroneously, there is no adequate remedy by appeal, and great injustice and irreparable injury have resulted. The Appellate Court held that while the SCRA’s predecessor allowed court’s to use discretion in granting a stay, the ACRA language mandates a stay. The father complied with the requirements of the SCRA, therefore the Trial Court erred in failing to grant a stay. As the child was relocated during the school year without consideration of his best interest, the Appellate Court also held that a later appeal would not be adequate and the injury was irreparable. Thus, the Appellate Court grants Father a writ of prohibition ordering the Trial Court to return the child to Kentucky, from Mother’s residence in Montana as soon as practical.
Judge Maze dissents comparing the SCRA to its predecessor which allowed Trial Court’s to use discretion in the decision to grant a stay. Judge Maze also points out that now that the child has already been moved to Montana moving him back to Kentucky simply aggravates the injury that has already occurred.
Digested by Elizabeth Howell
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