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Military Deployment and Child Custody

Child Custody & Visitation

Here is what can happen with a military parent’s visitation and parental rights and duties while they are deployed.

What happens when a parent is deployed for military service?

Nothing happens automatically if a parent is deployed. But, either parent/conservator may file a request for temporary orders if one of them is ordered to:

  • military deployment,
  • military mobilization, or
  • temporary military duty.

Temporary orders may be an option when the deployment involves moving:

  • a substantial distance from the conservator's residence,
  • that materially alters their ability to exercise their rights and duties concerning a child.

When filing such a request, the parent does not have to show a material and substantial change in circumstances.

Texas Family Code 153.702

How does the Texas Family Code define military service?

“Military deployment” means 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. Texas Family Code 153.701(2).

“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. The term does not include National Guard or Reserve annual training. Texas Family Code 153.701(3).

“Temporary military duty” means the transfer of a service member of the armed forces of this state or the United States from one military base to a different locationusually another basefor a limited time for training or to assist in the performance of a non-combat mission. Texas Family Code 153.701(4).

What can the court include in a temporary order based on military service?

The court can make the changes to your current court order that concern:

  1. Rights and duties (also known as conservatorship).
  2. Possession of or access to the child (also called visitation).
  3. Child support.

The court can grant rights to, and impose duties on, a designated person regarding the child, except ordering a designated person to pay child support if they are a nonparent.

Texas Family Code 153.702(b) through 153.702(c).

The custodial parent has been deployed. What happens now?

The parent with the exclusive right to designate the child’s primary residence is often called the custodial parent.

If the custodial parent is ordered to military service, then either parent can file a request for temporary orders.

As part of the temporary order, the court can designate who has the exclusive right to select the child’s primary residence during a parent’s military service. 

In choosing a designated person, the court will follow this order of preference:

  1. The parent conservator who does not have the exclusive right to designate the primary residence of the child. This parent is sometimes called the noncustodial parent.
  2. A nonparent who is chosen by the custodial parent (parent conservator who has the exclusive right to designate the primary residence), if appointing the other parent conservator (i.e., the noncustodial parent) is not in the child’s best interest.
  3. If choices 1 and 2 above are not in the child’s best interest, the court chooses a nonparent.

Read Texas Family Code 153.702(a)(1)(3).

If the court appoints a nonparent in this role, the temporary order will also give them the rights and duties of a nonparent appointed as a sole managing conservator. Read what those rights and duties are at Texas Family Code 153.371.

The court also has the option to limit or expand the rights of a nonparent in this role.  To do this, the court must find that the expansion or limitations are in the child’s best interest. Texas Family Code 153.702(c).

How does a custodial parent name someone to exercise their visitation during their military service?

Again, the court can make temporary orders regarding the parents’ visitation schedule when a parent is in military service. If you are the custodial parent, this means you have the exclusive right to choose your child’s primary residence.

If the court appoints the noncustodial parent, the court can order visitation with the child to a designated person chosen by the custodial parent. Texas Family Code 153.704(a).

Can the noncustodial parent name someone to exercise their visitation time?

The court can make temporary orders regarding the parents’ visitation schedule when a parent is in military service. If you are the noncustodial parent, you do not have the exclusive right to designate your child’s primary residence. This right belongs to the child’s other parent.

If the noncustodial parent gets deployed, the court may give visitation with the child to a person that the noncustodial parent chooses.  The noncustodial parent still must show the court that the visitation is in the child’s best interest. Texas Family Code 153.705(a).

The temporary order for visitation must state that the designated person has the right to possession of the child for the periods and how the noncustodial parent would have if not in military service. 

All named persons in the temporary order, including the custodial parent and a designated nonparent, are subject to the general terms and conditions of the Texas Family Code’s Standard Possession Order, found at Section 153.316. The designated person would be considered the “possessory conservator.”

Also, the designated person would have the rights and duties of a nonparent possessory conservator under Texas Family Code 153.376(a) during the period the designated nonparent has possession of the child.

The named persons in the temporary order are subject to any restriction, prohibition, or injunction concerning access to the child by any specified individual. 

The court may also limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the child’s best interest.

You can read Texas Family Code 153.075 for more information. 

What kind of visitation would the "designated person" have?

The temporary order must state that the visitation periods must be the same schedule for the periods and in the manner the noncustodial parent had under the court order in effect before the temporary orders were made. Texas Family Code 153.704(b).

All named persons in the temporary order, including the child’s other parent conservator or a nonparent, are subject to the general terms and conditions of the Texas Family Code’s Standard Possession Order, found at Section 153.316. The designated person would be considered the “possessory conservator.”

Additionally, the designated person would have the rights and duties of a nonparent possessory conservator under Texas Family Code 153.376(a) during the period that the nonparent has possession of the child.

The named persons in the temporary order are subject to any restriction, prohibition, or injunction concerning access to the child by any specified individual. 

The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the child’s best interest.

Read all of Texas Family Code 153.704.

Do parents need a temporary orders hearing if they agree as to what should happen when a parent is in military service?

No.

If you agree with the other parent about what should happen with the child, you can enter into an agreed temporary order. You may not need a hearing before the court. Parents can agree informally or go to mediation.

The agreed temporary order should state that it relates to a parent’s military deployment, military mobilization, or temporary military duty. Both parents should sign the written, agreed temporary order and file it with the court. 

The other parent and I do not have an agreement. When would the temporary orders hearing take place?

The parent ordered to military service must file a motion requesting a temporary orders hearing. Talk to the court coordinator or court administrator in the district or county court where your case is filed to find out how to get a court date.

The court must hold an expedited hearing if good cause is shown that the parent’s military duties have a material effect on their ability to appear in person at a regularly scheduled hearing.

If necessary, at the request of any party, the court can allow a party to testify and give evidence by electronic means. This request must be done with reasonable, advanced notice to the other party and court and must be for good cause. “Electronic means” can include testimony by teleconference (e.g., Zoom) or through the internet. 

Read Texas Family Code 153.707.

Can I have electronic communication with my child while I am in military service?

Yes. Depending on your military duties and deployment location, you can talk to your child on the phone or through video, like FaceTime, Zoom, or Skype. 

Parents can agree to allow electronic communication, but if it is not in the temporary order, the other parent does not have to enable it. You must ask the court to order this type of access to your child.

Read more about electronic communication.

The other parent (or designated nonparent) violated the temporary order. What can be done?

These temporary orders may be enforced by or against the designated nonparent in the same way an order would be enforceable against the conservator ordered to military deployment, military mobilization, or temporary military duty. See Texas Family Code 153.708.

Read more about how to enforce a visitation order

What happens once the parent’s military duty is over?

After a parent conservator's deployment ends and they return to their usual residence, the temporary orders will end. 

The rights of all affected parties, including the other parent and any designated person, will stop, and the parents must follow their prior court order.

Texas Family Code 153.702(d).

Can I get more time with my child to make up the time when I was in military service?

Yes. When a noncustodial parent is a member of the armed services and concludes their military service, they can ask the court for additional visitation (also known as periods of possession or access). 

The noncustodial parent must make this request no later than the 90th day after their military deployment, military mobilization, or temporary military duty is over.

The court will add up the periods of visitation which the noncustodial parent would have had if they had not been deployed. The noncustodial parent can get additional visitation periods to compensate for the missed time, and under terms the court considers reasonable. 

The court will consider the following when deciding whether to award additional periods of visitation:

  • Whether the noncustodial parent was in military service in a location where access to the child was not reasonably possible;
  • Whether a designated nonparent was named to exercise limited possession of the child during the noncustodial parent’s deployment;
  • Any other factor the court considers appropriate; and
  • If the additional periods of visitation are in the child’s best interest. 

Additional awarded visitation does not have to equal the visitation that the noncustodial parent would have had. It just has to be reasonable. After the noncustodial parent exercises all of their additional visits, follow the visitation schedule in the court order that existed before deployment.

Read Texas Family Code 153.709

To read about makeup visitation generally, visit here.

Is military duty considered a material and substantial change supporting a modification action?

No.

A conservator's military deployment is not a material and substantial change of circumstances that justifies a modification of an existing custody and visitation order.

The court can still make temporary orders, though.

See Texas Family Code 156.105.

How does military status affect child support in Texas?

Military and veteran families face unique challenges when it comes to child support and parenting. The Texas Office of the Attorney General (OAG) Child Support Division developed the Help Establishing Responsive Orders and Ensuring Support, or HEROES program, for service members. 

The HEROES program will partner a service member with a dedicated HEROES child support attorney. The program provides:

  • specialized case review and management;
  • personalized assistance with paternity establishment and child support;
  • help in cases where military-related injuries have made an obligor (the person paying child support) unable to follow the court order; and
  • resources to learn how to best parent together in unique circumstances.

You can reach a HEROES program staff member here or by calling 512-460-6400.

The Texas OAG also has a helpful brochure called Military Parents: Paternity, Child Support, Custody & Parenting Time.

You can find your local Texas Veterans Affairs office here to learn more about the benefits and services available to you.

What other resources exist for military parents or veterans?

Visit TexasLawHelp's Veterans & Military section, or use the TexasLawHelp Legal Help Directory.

You can read more about visitation for military parents at TxAccess.org.

Other resources include:

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