Military Child Custody Explained
Military child custody issues can pose challenges for civilians and service members. How is child custody and support handled when a military parent has sole custody or shares joint physical custody and is transferred, deployed or returns home? We address your questions about military child custody and military relocation and child custody here.
Child custody issues serve up plenty of challenges for civilians. When a spouse or parent serves in the military things can get even more complicated. This is evident in the many calls we regularly receive about custody issues involving children of military service members, military child support laws and military custody protection. Our founder Justin Sisemore addresses the most common questions here.
QUESTION 1: Will I lose custody if I join the military?
JS: Taking the honorable step to join the military shouldn’t mean you lose custody of your children. While the state of Texas didn’t specifically adopt legislation recommended in the Uniform Deployed Parents Custody and Visitation Act (sometimes referred to as the Military Parent Child Custody Protection Act), the state does offer members of the military similar legal options pertaining to Texas military custody protection and child support.
Per Texas Family Code Sec. 156.105, the state does not consider military deployment, military mobilization or temporary military duty to qualify as a material or substantial change, so members of the military would not be able to modify existing custody orders in Texas for those reasons alone.
However, in accordance with Texas Family Code Sec. 153.702, the state does allow parents to request temporary orders to accommodate child custody during deployment, mobilization or temporary duty. If the parent’s military obligations require the parent to move a substantial distance away from the child’s residence and/or materially alters the parent’s ability to fully exercise their parental rights and duties, the court may render temporary orders regarding:
- Possession of or access to the child; and
- Child support.
For example, temporary orders may allow the military parent to assign another responsible party, like a grandparent, to care for the child until they return from duty, at which time the temporary orders would expire. In addition, either parent could request temporary changes to child support based on temporary changes to income during deployment, military mobilization or temporary military duty. (I’ll shed more light on the changes to military child support topic later in the blog).
QUESTION 2: My child’s other parent just returned from deployment overseas. Can I refuse to allow him/her visitation due to concerns over a contagious disease?
JS: I understand your concerns, however, the state of Texas and local counties have been very clear in their mandates and court orders that they won’t tolerate violations of visitation orders without cause. For example, hiding or secreting of children is prohibited in most Texas counties, whether you have existing visitation orders or not.
The courts have no patience for parents when they violate court orders as they try to “self-remedy” situations (i.e., limiting access, denying visitation, being uncooperative, etc.). If you have no basis for your concerns, such actions could backfire on you in a big way.
On the other hand, if you have legitimate concerns and believe your child is at risk physically or emotionally—contagious disease or otherwise—contact a family law attorney right away. He or she can explain your options and help you take steps to protect your child.
QUESTION 3: I share custody with my ex, and my new spouse is being transferred to a different military base out of state. Can I get a custody modification and take my child with us?
JS: When it comes to military relocation and child custody, it all depends. Is your ex agreeable and willing to sacrifice access to the child? If so, there may be a clear path ahead for you. Conversely, if the other parent isn’t agreeable, you better prepare yourself for an uphill battle.
Possession orders often include geographic restrictions that must be followed in order to share custody of a child. This means both parents agree to live in a certain geographic area until the child becomes an adult. If you move out of state you would be violating those orders (unless you CAN get a modification to accommodate your spouse’s military relocation and child custody).
Here’s the thing—judges don’t take their court orders lightly. They want parents to adhere to possession orders in order to maintain stability in the court system and for the child—the same way commanding officers want to maintain the stability and rank in the military.
You do still have the ability to file a modification and request a hearing on the issue.
However, we’re still experiencing a backlog in the family courts that spiraled due to the pandemic, which means it could take a long time to get into court in the first place. It is also very unlikely the court will allow you to move based on temporary orders.
Once you DO get to court, don’t expect the judge to go easy on you. Many judges figure, you knew a transfer or deployment could occur but you signed the possession orders anyway, so too bad. Why should the other parent give up access and visitation when it’s you who wants to uproot the child?
This forces military families to make some difficult choices:
- Are you willing to choose between your child and your spouse?
- Are you prepared to invest the time and financial resources necessary to go to court? (Litigated custody modifications can cost several thousand dollars in legal fees.)
- Is your family unit willing to forgo moving (if that’s even an option) along with a promotion in rank that may go with it?
If you are determined to get a child custody modification in Texas due to a military transfer or deployment, speak to an attorney with experience handling military divorce and custody matters. He or she will be able to explain how military relocation and child custody works, determine whether you have a case and advise on the next steps.
QUESTION 4: My ex will be receiving extra compensation when’s he’s deployed next month. Can I request a modification in military child support?
JS: Depending on where he or she will be actively deployed and what duties he or she will perform, service members may receive extra pay, such as hazardous duty pay and separation allowances. All of this extra pay does qualify as income, so you could request a modification in military child support. However, it’s important to ask yourself:
Is it worth my time and money to go after what may amount to an extra $100-200 a month over the short-term?
Child support increases due to active duty deployment (and the service member’s coinciding increase in income) will only be temporary. Can you recoup the thousands of dollars in legal fees for a temporary bump? If the service member is our client, you can bet we’re going to press on the gas to reverse that increase as soon as he or she gets home.
Since it may cost you more in legal fees to get that temporary increase—not to mention the hassle—we typically don’t recommend doing so, except under certain circumstances. If it’s been some time since you’ve requested a child support modification, and you’re due for an increase anyway, then it may make sense to proceed.
QUESTION 5: My active duty spouse has threatened to harm my child and me. What can I do to protect us ASAP?
JS: If you don’t have an attorney yet (or can’t afford one), you may want to contact your spouse’s commanding officer (CO). In emergency situations where a threat exists, the CO can be a great resource in the interim. Some provisions exist in the military’s code of conduct to assist destitute spouses when an active duty service member has assaulted them or poses a threat.
However, contacting the commanding officer shouldn’t be taken lightly because everything you say will likely be noted in your spouse’s military record. When possible, take a day or two to decompress and assess your options. If you fear for your and your child’s life, call the police.
Should you decide to proceed and report your spouse to his commanding officer, stick to the facts. Was this a nasty argument that turned into a shouting match? Is there a pattern of physical and verbal abuse? Has he/she physically assaulted you (choking, punching, etc.)? Explain exactly what happened and leave the conclusions to the CO.
Keep in mind, whatever you say could have ramifications for years to come. Your spouse may lose rank or even be dishonorably discharged from the military. That could limit his or her future income earning ability and child support you would potentially receive.
I share this word of caution only because false claims of family violence occur every day, and many false accusers don’t think long-term. If you have been assaulted or fear for your safety, get to a safe location if possible, then contact the police and your spouse’s CO (or an attorney) ASAP.
Need legal advice on child custody for military families in Texas?
The Sisemore Law Firm in Fort Worth has been serving members of the military and their families since 2007. We also have attorneys on our team with more than 15 years of experience handling military divorce and child custody cases, as well as issues pertaining to military relocation and child custody.
To schedule a confidential case review with our founder Justin Sisemore, contact our office at (817) 336-4444 or connect with us online.
