Texas Enacts Family Protections During Military Parents' Absences

August 12, 2010

Military parents have plenty to be concerned about without having to worry about the care of their children during military assignment. The Texas legislature recognized the problems inherent with the need to protect the children of military parents while balancing those needs with the rights of military parents, and as such passed a new state law (Senate Bill 279) effective September 1, 2009 dealing directly with this circumstance of military deployment.

In Texas, divorced parents or unmarried parents of a child or children are typically named as joint managing conservators of their child or children.

Sometimes problems arise between joint managing conservators when one of the joint managing conservators is deployed.

Such questions that arise are:
- Where does the child reside if the deployed parent has the right to designate the primary residence of the child?
- If the deployed parent does not have the right to designate the primary residence of the child, then who gets to exercise the deployed parents visitation?
- What remedies are available in a situation where co-parents cannot agree as to what is in the best interest of the child during the deployment?
- Who should pay child support during deployment?

These and a large number of other questions were answered by the Texas Legislature in Senate Bill 279.

Temporary Court Orders

The court now has the authority to issue temporary orders in cases where a military parent/conservator is ordered for deployment, mobilization or temporary military duty.

Under these circumstances, either conservator -- whether or not he or she normally has the right to designate where the children reside -- may seek a temporary order modifying "possession of or access to the child" or child support during the time of parental military deployment or mobilization only.

In regard to the temporary custody orders during military deployment, the state legislature was very specific in setting out the order of preference with regard to the placement of the child.

The court must first favor awarding temporary custody to the conservator without the right to designate the primary residence of the child (the noncustodial parent). If it is not in the best interest of the child to designate the noncustodial parent as the temporary custodial parent, the court will defer to the current custodial parent's choice (such as leaving the child in the care of a grandparent or stepparent). If the court believes this choice is also not in the child's best interest, then the court may appoint its own choice for temporary custodian.

Concerning access to the child, also known as visitation, the temporary order may appoint a designated person to exercise the visitation rights of the absent military conservator. In practical terms, a grandparent, other relative or family friend could be given the right to spend time with the child in the place of the absent parent -if it is in the best interest of the child. These temporary orders automatically terminate when the military parent returns home (at which time the original orders will go back into effect).

Missed Access Time

The legislature saw fit to allow military parents the ability to seek additional access time or visitation after they return home from their deployment. A military parent has 90 days after deployment ends to petition the court for additional time with the child. The court may order additional access time if the court believes it is in the best interest of the child and the court considers the amount of time requested is reasonable.

Protection for Absent Custodial Conservator

The court cannot permanently modify child possession or access orders based only on military duty by itself as the sole factor. It may be one factor the court considers, but by itself, it does not sufficiently constitute a "material and substantial change in circumstances." The temporary order described above is the appropriate approach when a conservator is absent because of military service.

However as previously stated, the temporary order automatically terminates when the deployed parent returns from service.

Military Parents Still Face Unique Challenges

These changes to the Texas Family Code (Senate Bill 279) are a significant step in the right direction. While it may not solve all of the problems facing military parents, the law protects the rights of both parents while at the same time balancing the best interests of the children.

Because military parents may be forced to mobilize at a moment's notice, or move from base to base or state to state, the courts are given wide discretion when determining the best interests of a child.

Conclusion

Military parents make significant sacrifices when deployed, including time with their children. The changes to the Texas Family Code help to support these parents who already are giving so much to our country by protecting their rights.

If you have questions about these recent changes or are a military conservator who needs to learn more about your possession and custody rights, talk to an experienced Texas family law attorney.

Article provided by James L. Nowlin, P.C.
Visit us at www.jameslnowlin.com