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Military Deployment and Texas Child Custody: Protections for Service Members

Navigating a child custody case can be challenging in any circumstance. When adding on the additional complexity of a child custody case during active-duty service, our service members may be concerned about their rights and protections during a deployment.

Whether you are experiencing a Military Deployment, Military Mobilization, or Temporary Military Duty, the Texas Family Code and federal law has protections for service members going through a child custody case.

How Does the Texas Family Code define the different types of military service?

Under Texas Law, Military Deployment refers to the temporary transfer of a service member of the armed forces of this state or the United States serving in an active-duty status to another location in support of combat or some other military operation.

Military mobilization means the call-up of a National Guard or Reserve service member of the armed forces of this state or the United States to extended active-duty status. Texas excludes National Guard or Reserve annual training from their definition of Military mobilization.

Temporary military duty refers to the transfer of a service member of the armed forces of this state or the United States from one military base to a different location, usually another base, for a limited time for training or to assist in the performance of a noncombat mission.

Rights during Deployment

The federal law has several protections for military parents when it comes to child custody. Two of the bodies of law that provide these protections is the Uniformed Services Former Spousal Protection Act and the Servicemembers Civil Relief Act.

Under these acts, a servicemember cannot lose custody on the sole basis of a military deployment. This means that there would need to be a separate concern brought before the Court, in addition to a military deployment.

Another protection afforded by these acts is the right for a servicemember to request a stay or postponement of a child custody matter for at least 90 days after a deployment ends.

What happens if a conservator of the child is ordered to military service that falls under one of the types outlined above?

If one of the conservators is order to military service that will require that conservator to move a substantial distance from their residence and that move has a material impact on the ability to exercise rights and duties to the child, a temporary order can be requested to modify the terms of the current order. Unlike in a traditional modification case, there is no need to show a material and substantial change of circumstances outside of the military service.

When a conservator is deployed, mobilized, or sent to temporary military duty, the Court may put a temporary order in place regarding possession of or access to the child and/or child support.

Once a conservator’s military service under these circumstances has concluded and the conservator returns to their usual residence, the temporary orders obtained due to the military service terminate and all rights are governed by the Court Order that existed prior to the temporary order.

In addition to temporary orders that can affect possession of and access to the child and/or child support, the Court may also render a temporary order regarding the conservator with the exclusive right to designate the primary residence of the child. If the conservator ordered to military deployment, military mobilization, or temporary military duty is the conservator with the exclusive right to designate the primary residence of the child, the court may temporarily modify this right. Typically, the conservator who does not have the exclusive right to designate the primary residence of the child will be temporarily awarded that right during the military service. However, if the Court determines that it would not be in the best interest of the child to award the other conservator this right, Court may appoint a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child to step into this role temporarily.

Can the Court Appoint a Designated Person to Exercise Possession during a Conservator’s Military Service?

Yes, the Court can appoint a designated person to exercise possession during a conservator’s absence. The Texas Family Code authorizes the Court to award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.

If the Court grants this request, the periods of visitation will be the same as the visitation that the non-custodial parent was entitled to before the temporary order was put in place to award that conservator the exclusive right to designate the primary residence of the child.

The Court may also award visitation of the child to a designated person chosen by the conservator without the exclusive right to designate the primary residence of the child if that conservator has been ordered to military service.

Are there additional protections when it comes to court hearings and procedures?

The Texas Family Code and Federal Law imposes some protections as it relates to hearings and procedures.

For example, a Court should hold an expedited hearing under the following circumstances:

  1. A conservator ordered to military deployment, military mobilization, or temporary military duty files a motion for an expedited hearing;
  2. There is good cause shown for the expedited hearing; and
  3. The conservator’s military duties have a material effect on the conservator’s ability to appear in person at a regularly scheduled hearing.

If the Court grants the expedited hearing, that hearing shall take presence over all other cases not involving a conservator who has been ordered to military service.

The Court may also allow a party to present testimony and evidence by electronic means under these circumstances.

Is a Service Member entitled to Make-Up Time for Possession or Access to the Child?

If a timely motion is brought before the Court, the Court may award to the conservator additional periods of possession of or access to the child for a length of time that the conservator was deployed, mobilized, or under temporary military duty.

In deciding whether to award make-up time and how much make-up time will be awarded, the Court will consider the periods of possession that the conservator would have been entitled to during the military deployment and whether access to the child was reasonably possible while the conservator was away. The Court will also consider whether a designated person exercised any of the conservator’s time during the deployment.

If you are a service member experiencing a military deployment, military mobilization, or temporary military duty, please contact our office to discuss your options for a temporary order or staying any current proceedings that may be in place. We are here and ready to support you through the process.

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