What Does Texas Law Consider to Be Military Service When it Comes to Family Law?

Texas family law (known as the Texas Family Code) addresses explicitly what happens in families where the parents are divorced, and at least one parent is an active military member. The code was designed to help families struggling with deployment and child custody issues. An essential first step in understanding the relevant laws is to know how the code defines military service.

  • Military deployment. This refers to the transfer (usually temporary, but it can last many months or longer) of someone enrolled in the armed forces of their state or at the federal level. This person is an active-duty military member and is transferred to another place for combat or other type of military event.
  • Military mobilization. This refers to National Guard or Reserve members who are called up for duty for their state or at the federal level. This puts them on active duty, possibly at another location. It does not include annual training for either the National Guard or Reserve.
  • Temporary military duty. This is a situation in which a military service member at the state or federal level is transferred from a military base to another location for a limited time, usually for training or assisting with a non-combat mission. 

These are the scenarios that the Texas Family Code has identified as being eligible for having child custody orders temporarily modified. If your situation does not fit these scenarios or if you wish to change the statutory plan, then it is vital that you discuss those details with your attorney before the judge signs the final order so that the plan may be customized to your needs.  If you’re unsure as to whether your situation applies, talk to an experienced military divorce and child custody attorney. 

What Happens When the Noncustodial Parent Is Deployed by the Military?

In Texas, only the custodial parent may determine where the child lives. It doesn’t matter if the noncustodial parent is deployed–they have no say in where the child lives. On the other hand, if the custodial parent is the one who may be deployed, there may be a geographical restriction that prevents relocating the children to reside where the military is sending the custodial parent for an extended period of time.

However, if the noncustodial parent is deployed and has visitation rights, they do have the right to designate someone to take over the visitation in the noncustodial parent’s absence. This is not something the court does lightly. Just as the family court looked at the child’s best interests during the divorce and custody proceedings, it will want to be assured that the person taking the noncustodial parent’s place during visitation while the noncustodial parent is deployed is someone essential and trusted for the child to see. This is often a trusted family member or close friend, preferably someone the custodial parent knows and is comfortable with, such as a grandparent or aunt.

The court needs to approve a change in the custody order to reflect permission for the designated visitor, including the fact that the visitor is allowed to have the child in their custody for the same time and under the same circumstances the noncustodial parent would have had they not been deployed.

What if the Deployed Noncustodial Parent Violates the Custody Order?

If the court amends the custody order to reflect the deployment and arranges a visitor for the child’s visitation, but the noncustodial parent violates that order, there can be consequences. Child custody orders that include visitation are usually only approved by the court when they’re specific about the visitation (listing dates, times, and places). During deployment, those specifics are expected to remain the same, with the exception of a different person visiting the child.

Suppose the noncustodial parent attempts to have someone other than the designated substitute visit the child or set up dates, times, or places other than what’s approved in the custody order. In that case, the custodial parent may file an enforcement lawsuit. That lawsuit must specify precisely how the custody order was violated (for example, the noncustodial parent’s friend tried to visit the child rather than the approved grandparent) and what the custodial parent wants as a result of the lawsuit.

To do so, the custodial parent must provide the wording from the custody order that specifies the details of the approved visitation along with proof of its violation. That can take many forms, including emails, text messages, or voicemails from the non-approved visitor stating they want to take the child, security camera footage, eyewitness testimony, etc.

If you’re unsure of what evidence you might have to prove the violation, contact an experienced military and child custody attorney.

Is the Changed Custody Order Permanent Once the Noncustodial Parent Is No Longer Deployed?

No. Changes put into effect to reflect the deployment circumstances only hold as long as the noncustodial parent is still deployed. Once the deployment ends and they return to pre-deployment life, the amendments are no longer valid, and the original custody order stands. That means the noncustodial parent has the right to the visitation they had before being deployed. Anyone they had visiting the child in their place during deployment is no longer authorized to be a substitute during visitation.

Alternatively, if the noncustodial parent knows that the deployment is a possibility at the time of divorce, they may try to reach an agreement with the custodial parent to make up that lost time after the deployment ends or come to some other arrangement that the parties can agree upon. It is best to have that agreement incorporated into the court order so that the terms are clearly set forth and neither party can try to change the conditions or deny that the agreement was in place.

What Should I Do if I Need Help with Child Custody Enforcement Orders and Military Deployment?

Call the Laura D. Heard Law Firm as soon as possible at 210-775-0353 to request an initial consultation. We understand how stressful child custody issues can be, and they can be even more fraught with problems when one of the parents is in the military and finds themselves deployed. Our experienced, knowledgeable military divorce and child custody attorneys can review the specifics of your case and help you choose the approach that makes the most sense in your situation.