Child Custody and visitation challenges for military families

Texas has specific laws in place for visitation for military families. Those laws in addition to the circumstances that your family finds itself in as far as your military status is concerned will go a long way towards determining the outcome of your Texas family law case. If you are unprepared, unaware, or otherwise not ready for the specific issues that you will confront in your case then you have little chance of success. Think about your military service. Before a mission is attempted you would have trained endlessly until the motions and mission itself becomes second nature. Even if you are not involved in combat, the tasks you perform have been drilled and practiced into you so it is no surprise when something comes your way. You are so prepared that you can seemingly handle anything.

That is what we at the Law Office of Bryan Fagan work to do on behalf of all our clients. We take special pride in being able to serve our military families. Whether you are on active duty, a veteran, or serve in the National Guard we want you to know that the family life of military members does present challenges in a family law case, but those challenges need to be managed just like any other that we encounter if life- head-on. Our attorneys want to know that we will walk alongside you and help you accomplish your goals by providing you with honest information about your case. From there, you can make decisions that you believe are best for your family and yourself.

What does a court look at when determining custody issues?

When we talk about child custody issues in Texas what we really mean are visitation and possession. Those two words don’t quite roll off the tongue quite like “custody” so even lawyers and judges call these issues by the simpler, one-worded identifier. Custody incorporates rights, duties, periods of possession, and everything that you want to talk about with your child- other than child support (we will get to that subject later in today’s blog post). When we talk custody what we are trying to determine is how often you can see your child, what rights do have concerning him or her, and what are your duties/responsibilities. That is the essence of custody.

No matter what the specific issue is when we talk about custody, the court will look to the best interests of your child before deciding. The best interests of the child standard are one that your court will use if and when it is called to do so. Most family law cases do not reach a courtroom – at least for a trial. In most cases see parents like you settle the case with their co-parent well before a trial. However, if you do find yourself in a courtroom you need to know what matters to the judge. The best interests of the child standard is a tried and true benchmark for judicial decision-making in the area of family law. Texas is so no exception to this rule.

The best interests of your child are reflected in their current living circumstances. What situation puts your child in the best position to do well when it comes to developing into a productive adult? Is there nurturing in their home environment? Who is the parent that cares for your child after school, feeds your child, and makes sure your child is healthy? If there are problems in the home like drugs, alcohol, or even people living there who pose a threat to your child then that will be considered, as well, by a court. If there are threats of harm to your child that are documented within your home this is something that you will need to address before the end of your family law case.

For military families, the ability to provide consistency and stability in the home environment is the key factor. If you are serving in the military, you are doing something noble on behalf of yourself, your family, and all Americans. With that said, it does not make it easy to be a parent. When you are taking care of your responsibilities as a member of the military it is difficult for you to also be able to parent your child to the best of your abilities. Even if you are in a situation where your child can live close to where you work it is hard.

Being in a situation where you may be deployed to another country as part of your military service makes the situation even more difficult. In that case, you almost surely will not be able to take your child with you. This is especially true if you are deployed somewhere that is remote or hostile to Americans. In that case, you will need to work with your co-parent to come up with a plan as far as how to handle that sort of circumstance. It will likely end up with the two of you need to work together to maintain consistency in the life of your child while ensuring that his or her best interests are being looked out for first and foremost.

What are the two types of conservatorships in a child custody case?

Conservatorship refers to having the right to make decisions on behalf o your child as well as the duty to care for your child in various ways. In most divorce and child custody cases, parents are joint managing conservators of their children. This means that if you are a joint managing conservator not only do you share custody of your child with a co-parent, but you also share in the decision-making and responsibility-bearing aspects of parenting. There is a presumption that a joint managing conservatorship is in the best interests of your child.

The other type of conservatorship is known as a sole managing conservatorship. In a sole managing conservatorship, you would retain rights and duties concerning your child with limitations. As a military parent, it is foreseeable that your co-parent would be named as the sole managing conservator of your child while you would be a possessory conservator. As the possessory conservator, you would be able to make some decisions on behalf of your child- usually in combination with your co-parent. Additionally, you would have limited visitation opportunities. You see sole managing conservatorships in situations where a parent has had issues maintaining a stable home. However, if you are a military servicemember who is actively deployed or otherwise unable to keep a specific schedule for your work then a sole managing conservatorship may be an option for you, as well.

When it is all said and done, judges want to see stability for your child. Stability and safety usually go hand in hand. Even if the arrangement is not exactly what you, your co-parent, or your child wants a judge is more likely to side with the safe, predictable possession schedule and conservatorship arrangement rather than to go out on a limb and allow for a more flexible or fluid custody arrangement. While your military service may be a noble calling it does not exactly promote stability in the life of your child- at least for this season in your life and theirs. As a result, being a military parent may put you at a disadvantage when it comes to being able to work through and negotiate and fair and equitable parenting plan and visitation schedule. This is not to say that you cannot effectively parent your child, however.

You need to be honest with yourself when it comes to negotiations on child custody issues. The last thing that you should do is to try and “bite off more than you can chew” when it comes to visitation and possession. Trying to convince yourself, your attorney, your co-parent, and a judge that you can take on more responsibility in this area than you really can is a recipe for disaster. For one, you may put your child in a position where he or she expects to see you on a certain date or at a certain time when you know realistically that cannot happen. Next, your co-parent will be put in a situation where he or she needs to be constantly available to care for your child during a period of possession designated as yours. Next, you may put yourself in a position where you are making life difficult for those members of the military that you serve with.

Parenting plans for military parents

An example of how you and your co-parent can work well together when it comes to deployment and the sharing of rights and duties of your child would be if you are a member of the military who knows he must deploy overseas soon after your divorce. As a result, you and your wife included in your final decree of divorce that you would create checks and balances to ensure that your child is cared for while you are abroad. This includes a combination of your wife getting some of that time with your child. Additionally, you are given the option to allow a person named in your decree (in this case your mother) to be able to have extended time with your child as a “substitute” parent. When you returned from overseas you would be able to have make-up time with your child, as well. The more thorough and detailed you can be with your spouse during negotiations in your divorce the better the outcome will be for your child.

Additionally, while you are overseas you can negotiate for the ability to call your child whenever the opportunity presents itself. This could mean that you reach out to your child at their bedtime each day if possible. Technology allows for greater flexibility in speaking to your child. Email may not be that fun for your child but being able to see that their dad is thinking about him or her even while you are far away can lift the spirits of your child. Other messaging applications, face/video phone calls, and a range of other options are available to you. Be sure to think about these options while you are negotiating child custody issues, as well.

Modifying child custody orders when you return from overseas

One of the issues that you may encounter in your family law case is that your deployment overseas may mean that you are gone for a period but that you will not have to return to that sort of arrangement. For example, you may know that this is your last trip abroad, and when you return you either have a stateside job waiting for you close to home or you will no longer be on active duty. In any event, you can use this to your advantage when re-negotiating your child custody orders through a modification. While normally one of our attorneys would not recommend negotiating your initial orders with an assumption in mind that you can come back and modify them later, as a military parent you may have no choice but to do this. Be sure to think through all the issues of your case when filing a modification.

A material and substantial change in circumstances are needed to show that a modification of your child custody orders is merited. In addition, you need to be able to show that the requested modification is in the best interests of your child. These modification cases are different from an initial child custody or divorce case and as a result, can become tricky if you do not have an experienced family law attorney representing you in a case like this. Coming back from deployment you may be set up well to be able to obtain the modification that you are seeking. However, when you have a modification that you would like to file you can do so with greater ease when you have an attorney representing you.

A material and substantial change in your circumstances is the likely outcome of your no longer being on active duty and deployed overseas. Your situation changes when you can remain at home to care for your family rather than obligate yourself completely to a military mission. If you would like to have regular contact with your children and a more consistent visitation schedule with them now that you are back in the USA that is what a modification is designed for. Organizing your evidence and then being able to negotiate with your co-parent so that you do not need to take your case to a trial would be ideal for you and your family.

Another change in circumstances that you may have seen since coming home after deployment is a change in your income. For example, your income may have seen an increase over the past couple of years while you were serving overseas. Now that you are back home in the USA your income may have been decreased. Or, you may have transitioned out of the military and into a civilian job where you are paid more than what you were earning as a member of the military. In any event, you should look at your income when you are back after deployment to determine whether you need to request a modification to the child support that you pay.

Overall, the best information that we can give you right now is to stay proactive when it comes to the challenges and opportunities that present themselves because of your military service. For this season in life, you may need to take a step back in terms of how much time you can commit to your children. This does not mean that you do not love your children or value your time with them. However, you may have an obligation to your military service that makes it physically impossible for you to have as much time with your children as you would like. Take that into consideration for now and then plan to take full advantage of your opportunities to modify your court orders in the future to reflect changes in your work schedule and commitments.

Overall, I think one way of being proactive about the possibilities associated with child custody and military service is to reach out to an experienced attorney with the Law Office of Bryan Fagan. Our attorneys can discuss your options whether you are going through a divorce, or child custody case or need a modification. Even if you are living overseas or are otherwise not in Texas, we can work with you to discuss your options and even move forward with a case while you are living elsewhere.


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