Background
Father Robert Fries and mother Beth Orcutt shared joint custody of their two children under a domestic relations judgment. The parties had agreed that if father — an active-duty servicemember — was deployed overseas, his weekend parenting time would be assumed by the children’s stepmother. When father was deployed to Egypt for an extended period, conflict arose between mother and stepmother, including a disputed incident during stepmother’s assumed parenting time. Mother moved to modify custody and parenting time.
Father notified the trial court of his deployment and invoked 50 U.S.C. § 3932, the Servicemembers Civil Relief Act (SCRA), requesting a stay of all proceedings until his return, or at minimum a 90-day stay. The court granted an initial 90-day stay as required by statute. After that period elapsed, father renewed his motion, specifically arguing that if the court denied the additional stay, federal law required it to appoint him counsel before proceeding. The court denied the second stay motion, reasoning that father had been able to file his own motions and articulate his positions from overseas, and that he was using the law to strategic advantage. No attorney was appointed for father.
At a subsequent hearing held while father remained deployed, the trial court granted mother’s motion, modifying custody from joint to sole in mother’s favor and temporarily restricting the children’s parenting time with stepmother. Father appealed, raising three assignments of error.
The Court’s Holding
The Oregon Court of Appeals vacated the supplemental judgment and remanded the case. The court held that once the trial court denied father’s request for an additional stay under 50 U.S.C. § 3932(d)(1), the SCRA mandated that the court “shall appoint counsel to represent the servicemember in the action or proceeding.” 50 U.S.C. § 3932(d)(2). Because the trial court denied the stay without appointing counsel, it committed legal error — regardless of whether the court otherwise had discretion to deny the additional stay.
The court further held that the error was not harmless. Father lost custody at the very next hearing following the denial of counsel, and there was a genuine substantive dispute over whether mother had demonstrated the change in circumstances required to modify joint custody under ORS 107.169(5). Because the court could not say there was little likelihood that the absence of appointed counsel affected the outcome, the error required vacatur of the supplemental judgment. The court declined to reach father’s two remaining assignments of error.
Key Takeaways
- Under 50 U.S.C. § 3932(d)(2), if a court denies a servicemember’s request for an additional stay beyond the mandatory 90-day period, appointment of counsel is not discretionary — the statute uses mandatory “shall” language and the court must appoint an attorney before proceeding.
- A trial court cannot both deny a SCRA stay and decline to appoint counsel; those two actions in combination violate federal law.
- A servicemember’s ability to file pro se motions from overseas does not substitute for the statutory right to appointed counsel, and the court’s assessment that the servicemember was “using the law to strategic advantage” does not justify bypassing the SCRA’s counsel requirement.
- The harmless-error bar is difficult to clear when the unrepresented servicemember immediately loses on a contested substantive custody motion following the denial of counsel.
Why It Matters
This decision is a pointed reminder that the Servicemembers Civil Relief Act imposes non-discretionary obligations on state courts handling civil proceedings — including child custody matters — involving deployed military personnel. Family law practitioners and trial judges must recognize that denying an additional stay triggers an affirmative duty to appoint counsel; there is no middle path that allows the proceeding to continue without representation simply because the servicemember has been capable of appearing remotely.
The opinion also surfaces a practical tension: Oregon courts have faced a well-documented statewide public defense crisis making it difficult to secure appointed counsel even for criminal defendants. The court acknowledged that reality but held it does not excuse noncompliance with the SCRA. When appointment of counsel proves infeasible, the statute’s alternative — extending the stay — remains available, and courts should use it.