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Losing Child Custody During Military Deployment

When going through a child custody or divorce case while on active military duty, it can feel like the case is sometimes slipping through your fingers due to your inability to participate as fully as you would have, but for your military service. Being across the ocean in a place where you do not have reliable internet or phone service can do that to a person. While you are defending our nation and our nation’s interests, you may be concerned with ongoing with your family and children.

The goal of our experienced family law attorneys is to help you in whatever circumstances you currently find yourself in. We aim to support our clients, educate you on the law and your legal options, and help you make decisions that are in the best interests of your child. Sometimes making these determinations can be easier to reach than at other times. Especially when you find yourself in atypical circumstances, we may need to examine your life more closely to reveal better what is in your kids' best interests now and what will likely benefit them the most in the future.

One of the things that I hear from military parents is concerns that their co-parent is alienating their children from them while they may be overseas or stationed elsewhere in the country. You may be concerned about similar issues in your own life. Having a spouse talking negatively about you to your children while you are stationed away from Texas can be a helpless feeling. Your occasional phone calls, emails, and FaceTime visits with the kids can only do so much to combat alienating behavior. Family courts acknowledge the harmful effects of this type of activates. Your court orders will reflect the reality that negative language and behavior by your co-parent towards you is not something that will be tolerated.

With that said, it is impossible for the court to completely oversee the alienating behavior that we have been discussing today. It is up to you and your co-parent to honor the terms of your court orders- whether they be temporary orders or final orders- in terms of not speaking poorly about your co-parent in front of your child. While this is a great objective to have, it can be difficult for both you and your co-parent to honor at all times. When the language used towards you by your co-parent becomes especially intense, that can lead to your child feeling that they do not want to spend time with you.

The combination of feeling alienated from you due to being far from you physically and their parent actively turning your child against you using alienation techniques is a disturbing reality for many parents like you. For those of you who have older children, it is an especially significant problem given how teenagers in Texas have a right to directly talk to the judge about their preference on living situations and conservatorship. That doesn’t mean that your child can determine where they live on a full-time basis, but the older your child is, the greater their role in that discussion.

What role will your child play in determining custody, possession, and visitation rights?

The reality of the situation is that your child can determine where they want to live primary anytime they want. The trouble with that is you being deployed or stationed somewhere not in Texas may make that difficult. You and your co-parent have the ultimate authority on determining where your child lives primarily. If the two of you can agree on where your child lives primarily, it doesn't matter what your court orders state. Mutual agreement between the two of you is what matters to your child and your family.

Teenaged children in Texas have a right to speak to the judge outside the presence of a jury or either you or your co-parent about their preferences regarding conservatorship. Usually, these meetings take place in the office of the judge. You can request that your attorney be present in the meeting and that the court reporter recorded the interaction. The nature of the conversation will likely be short. Judges are not family counselors or therapists. A judge will likely ask basic questions about their life, your home, that of your co-parent, and other things of this nature.

A child over the age of 12 must meet with a judge to discuss these things. A child under 12 may be allowed to meet with the judge only if the judge allows it to occur. Older children generally speak more maturely than younger kids and may have opinions that a judge can trust more readily. We see from kids that their opinions can change quickly based on factors like which parent disciplines them more severely or less regularly. A judge would not want to base a custody determination on this factor alone.

What impact will your role in the breakup of the marriage play in child custody issues?

Probably the most common factor alleged in divorce petitions as far as causes of divorce are adultery. Unfortunately, marital infidelity is pretty common and can cause a breakup in your marriage. In divorce cases in Texas, adultery is one factor that can be used to award primary custody to one parent over another. The extent to which your children have been exposed to infidelity is a relevant factor to consider. The more your kids have been exposed to cheating, the greater role that adultery will likely have on your case.

I have seen in divorce cases that people automatically assume that infidelity is a "silver bullet" as far as helping people achieve their goals. If you can show that your spouse cheated on you, you will have a straightforward divorce. While this may have been true to vary degrees at other points in history, this is not necessarily the case in Texas. Rather, these are circumstances that will be looked at with varying degrees of specificity. Does being a bad spouse also equate to being a bad parent?

Perhaps, especially if your spouse exposed your child to infidelity. If your spouse brought their paramour around the home, introduced your child to them, and made it confusing as to the person's relationship to your kids, then I could see a judge being a little more heavy-handed in assessing the situation with your co-parent. On the other hand, if the infidelity was never anything that your child became aware of, the judge may choose to look at it from a different perspective. If the judge cannot be shown that the cheating impacted your kids, then it is probable that the judge will not determine the infidelity to be something that can impact a child custody determination. Do not expect child custody issues to be turned around by adultery or marital infidelity without being able to prove its impact on your children.

Could visitation periods be made to be supervised?

In some situations, your visitation periods with your child may be supervised. This is not likely to happen absent extreme circumstances like abuse, neglect, drug/alcohol abuse, or things of this nature. There would need to be extreme circumstances showing an inability to care for your children or put their best interests first when the kids are in your possession. You don’t see these situations occurring all that frequently, but they do happen. Your military service and responsibilities should not be seen as a circumstance that justifies a request for supervised visitation, nor your spouse will likely ask for supervised visitation in your divorce.

When can custody orders change?

To modify or change a child custody order can cost a relatively large sum of money. If you are still going through initial child custody or divorce case and are interested in having the custody orders changed significantly from the time of your temporary orders hearing until the time of your trial, then it is likely that you must litigate the matter. The reason for this is that it is unlikely to settle with your Co-parent aren't significant changes in child custody given that the temporary orders favor them more so than you.

Additionally, if you need to be filing for a modification regarding child custody after the conclusion of a divorce or child custody case, then that can cost a significant amount of money; as well, I always tell clients that perhaps the most significant change or modification that can be made in regards to custody is regarding primary conservatorship. Most parents are completely unwilling to modify their custody arrangements when they have primary custody. With that said, it is typically necessary to go to court if you desire to gain primary custody.

In Texas, to modify a court order, there needs to be a material and substantial change to your circumstances, the circumstances of your parent, or those of your child before a judge will modify particular order. This is a fairly high bar that shows the hesitancy that courts have in modifying something as important as custody orders. This means you better be prepared to present ample evidence to substantiate the modification that you were seeking. Hiring an attorney, while not necessary, this certainly recommended when it comes to moving forward with a case like this.

So, even if you were planning on moving forward and getting a divorce without an attorney while deployed overseas, this certainly would not be recommended if you attempt a modification case. Even if no modification case is currently on the table and you seek only to be named as primary conservator, it is still recommended for you to have an attorney due to the higher degree of difficulty in this kind of case. At the very least, you should be seeking the advice and perspective of an experienced family law attorney before proceeding.

What should you check for before filing a custody case?

If you are interested in filing a modification case for a change of custody, then there are certain bits of information that you should be verifying before filing your case. First, you should verify a prior court order and not just an oral agreement or a contract signed by you and your spouse before your deployment. Many people confuse an oral agreement or even a written contract between spouses as a valid court order. A valid court order contains the signature of you, your spouse, your attorneys, and the judge.

Next, you need to consider whether or not there has been a legitimate material and substantial change in circumstances since the date of your last court order. If there has been, then filing a modification case would seem to be justified. However, slight changes in circumstances or a different perspective on custody based on your first family law case do not necessarily count as a material and substantial change.

One key to this discussion is that the change must have been unforeseeable when the initial order was created. This means that the new circumstance must have come into being since the last time you were in court. You could not have anticipated the change in merely ignored it or neglected it in favor of some other consideration more important to you at the time. Rather, he must have a completely new circumstance that could not have been considered when your initial order was created.

Next, you need to consider whether or not the material and substantial change, if it exists, necessarily needs a change in custody. It could be that a mess dramatic or less substantial change is needed in the order. Simply changing a visitation schedule or even increasing child support payments may suit you and your co-parent better and your child compared to changing who is the primary conservator of them. A judge would look to see whether or not a custody change is the only solution to your problem period; if any other possible outcomes could suit your family better, those options will likely be taken advantage of versus completely changing custody arrangements.

Another consideration for you to keep in mind is the possibility of your parent agreeing with you to change custody. As we talked about a moment ago, it is unlikely that they will be willing to work with you on this. There are advantages in terms of time and money to be designated as the primary conservator of your child. It would be understandable, therefore, for your Co-parent to be unwilling to discuss with you the possibility of changing conservatorships roles.

However, it is worth your while to bring it up to your spouse or Co-parent to determine their feeling on it. It may be that if you are coming off of deployment, they hope your current may be more willing to work with you on modifying or changing custody arrangements. If you do not ask and do not pursue this in negotiation, the answer will always be no. Rather, you should pursue negotiation on this subject as much as possible before succumbing to go into court. The court will always be there to hear your case. You will not always have the opportunity to negotiate, however.

Another consideration for you to bear in mind is whether or not you have the time to pursue a case like this. It can be frustrating to be held back from filing and pursuing a modification case that you believe is in your child's best interest. However, if you are deployed or otherwise encumbered by your military responsibilities, then you may not have the wherewithal to pursue a modification case at this time. The reality of your situation is that pursuing a modification case on deployment can be tricky, given that you will need to be heavily involved in the case.

Either way, when you are pursuing a modification or any other kind of child custody case, you need to be aware of your rights and obligations under the law. There is no better place to start learning about that subject than with a competent and experienced family law attorney. There is no requirement that you hire an attorney to represent you in a custody case, but the consequences of not hiring a lawyer can be dramatic. It may involve you losing custody rights and visitation time with your children.

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family may be impacted by the filing of a divorce or child custody case.

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