We’ve now posted a handful of times about the Servicemembers Civil Relief Act (SCRA) on this blog. In particular, we’ve posted on the SCRA’s application to non-judicial foreclosures, juvenile proceedings, and family law cases. At the risk of being told that the blog should be renamed “The SCRA and Other Civil Stuff,” I’m going to add another SCRA post to the list. In my defense, over the course of the past few months I’ve received a number of questions regarding the applicability of the SCRA to proceedings before the clerk of superior court. In particular, I’ve been asked whether the SCRA applies to incompetency proceedings filed under G.S. Chapter 35A for the purpose of obtaining a guardian for an alleged incompetent adult. Here’s how I’ve answered the questions I’ve received:Continue Reading
*Note this post has been amended to reflect the December 2015 recodification of the SCRA
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. § 3912(b). 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. § 3931(a) and -3932(a). Continue Reading
Cheryl recently posted about the Servicemembers’ Civil Relief Act (SCRA). The SCRA is intended to provide protections for servicemembers on active duty and returning from active duty by suspending certain legal processes against them. The SCRA applies to all non-criminal proceedings, including areas subject to the clerk’s authority such as adoptions, legitimations, foreclosures, and default judgments, among others. Cheryl’s post identifies and walks through four steps judges and clerks should follow in applying the SCRA to most non-criminal proceedings. However, with regard to non-judicial power of sale foreclosures, a different analysis applies. These foreclosures are filed before the clerk of superior court under Chapter 45 of the General Statutes.
In January we were reminded by the North Carolina Supreme Court in In Re J.B. that:
1) We have military personnel living throughout our state, not just in districts with military facilities, and
2) The federal Servicemember’s Civil Relief Act, 50 U.S.C. app. sec. 501, et. seq., (SCRA) applies to all non-criminal judicial and administrative proceedings involving service personnel, including domestic and juvenile cases.
The Act contains no exception for any civil proceeding. So it covers custody, divorce, support, equitable distribution, 50B and 50C cases, abuse, neglect and dependency proceedings and termination of parental rights.