Military Child Custody Explained
Military child custody issues can pose challenges for civilians and service members. When a parent serves in the military during a pandemic, things can get really complicated. During and absent a pandemic, 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 here.
Child custody issues serve up plenty of challenges for civilians. When a spouse or parent serves in the military—and you’re in the midst of a pandemic—things can get even more complicated. This is evident in the many calls we’ve received lately about custody issues involving children of military service members. Our founder Justin Sisemore addresses the most common questions here.
ACTIVE DUTY MILITARY:
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QUESTION 1: My child’s other parent just returned from deployment overseas. Can I refuse to allow him/her visitation due to COVID-19?
JS: I understand your concerns, however, the state of Texas and local counties have been very clear in their COVID-19 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.
In these turbulent times, you don’t want to act rash right now—trust me. The courts are coming at parents HARD 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—coronavirus 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.
Have other questions about child custody during the pandemic? Visit our COVID-19 Resources page.
QUESTION 2: I just returned from deployment. Now my ex is denying me rightful access to my child due to COVID-19 concerns. What should I do?
JS: If you’re a parent who just returned from deployment (and don’t have symptoms or known exposure to the virus), stay calm. Take the proactive steps necessary to show you are doing everything possible to keep your child safe, such as getting tested and tracking your temperature.
Let the other parent know:
- You’ve taken these steps.
- You have no symptoms.
- You will continue to take strict precautions.
- But you’re coming to get the child.
The other parent may still refuse visitation and access but you will have set the stage for regaining visitation by taking good, kind and rational actions. Judges look favorably upon proactive parents who try to amicably co-parent and frown upon those who waste the court’s time violating orders for no reason. Just be sure to keep records (test results, temperature log, text messages, voicemails, emails, etc.) as evidence to prove you’re doing the right thing.
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: 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).
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, in light of COVID-19, there is a backlog in the family courts, which means it will 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 determine whether you have a case and can 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 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 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.
To schedule a confidential case review with our founder Justin Sisemore, contact our office at (817) 336-4444 or connect with us online.
Photo Source: @brittleighhhh via Twenty20