The SCRA and Juvenile Proceedings
Published for On the Civil Side on April 29, 2015.
Earlier posts address the SCRA in family law actions and non-judicial foreclosures. It’s my turn to address the SCRA’s application to abuse, neglect, dependency (A/N/D), and termination of parental rights (TPR) actions.
When and Why Does the SCRA Apply?
The SCRA applies to any judicial or administrative proceeding, except for criminal proceedings. 50 U.S.C. App. § 512. There is no exception for A/N/D or TPR actions, which are “child custody’ proceedings. G.S. 50A-102(4). Child custody proceedings are specifically referenced in the SCRA. 50 U.S.C. App § 521(a) and -522(a).
The purpose of the SCRA is twofold:
- provide for and strengthen national defense by enabling servicemembers to focus on defending the nation
- by providing “for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.”
- Ask the respondent or someone who knows him or her,
- When identifying and notifying the child’s adult relatives of the child’s removal [G.S. 7B-506(h),-800.1(4), 42 U.S.C. 671(a)(29)], ask those relatives about their knowledge of the respondent’s military status,
- Ask the county’s IV-D child support agency if it has information about the respondent’s military status and/or civilian employment, and/or
- Conduct a free search on the Department of Defense website: https://www.dmdc.osd.mil/appj/scra/welcome.xhtml.
- respondent is/is not in military, or petitioner is unable to determine the respondent ‘s military status, and
- the necessary facts that support the affidavit.
- locate the servicemember,
- determine if there is a meritorious defense, and
- consider whether to request a stay of the action.
- has not made an appearance (50 U.S.C. App. § 521), and/or
- has actual notice of the case and has made a request for a stay in compliance with the requirements of 50 U.S.C. App. § 522(b)(2).
- The postponement or halting of a proceeding, judgment, or the like.
- An order to suspend all or part of a judicial proceeding or a judgment resulting from that proceeding.”
- The purpose of the SCRA to protect servicemembers balanced with the purpose the Juvenile Code (G.S. 7B-100) to keep children safe while protecting the rights of parents and juveniles.
- G.S. 7B-1003 addressing the court’s authority to enter temporary orders affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile but inability to proceed with a TPR when an appeal has been made.
- An Arkansas opinion, Lenser v. McGowan, 358 Ark. 423 (2004), which involves a divorce initiated by the service member that allowed for a temporary order to be issued granting custody to the child’s mother over the servicemember’s mother (the child’s grandmother) before it issued the stay under the SCRA.
Public Officials - Courts and Judicial Administration Roles
Topics - Courts and Judicial Administration