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Military custody

Some of the most difficult circumstances in divorce or child custody cases come from families in the military. Suppose you are a military member that you understand perfectly well the sacrifices that you and your family have undertaken to represent our country and protect us both at home and abroad. Texans are fortunate to be able to call many members of our military and veterans neighbors. We at the Law Office of Bryan Fagan appreciate the sacrifices you and your family make daily on behalf of all Americans.

By the same token, some of the most rewarding family law cases that I have been involved in are those involving military families. While there are certainly challenges associated with these cases, there are also opportunities to improve people's lives with big hearts and a sense of duty. Members of the military and veterans both understand what it means to have a mission and intentionally achieve the goals associated with that mission. This is something that I never have to repeat to a military member or veteran. Namely, achieving success in a family law case means keeping your eye on the prize and not deviating from your plan.

How to draft a visitation order

As with any parents attempting to draft custody orders, the main problem that you and your spouse will run into his military members and spouses is that there are limitations to 2 visitations that will go into place almost immediately because one of you lives a significant distance from your children. Having specific times and dates laid out speaks ethically in the agreement or order can oftentimes be difficult to abide by, given the nature of your schedule. On the other hand, including languages like having reasonable periods of possession or visitation are more open-ended. Still, they do less to protect parents from having as much time with their children as they ought to.

For instance, military families need to decide a reasonable period of possession or a reasonable amount of visitation. For instance, if you, as the mother, live in Houston and your ex-husband is stationed at Fort Hood, then is it reasonable for your husband to drive to get your child on Friday at 6:00 PM? Bear in mind that it is a 3 1/2 hour drive from Fort Hood to Houston. Even bearing in mind that your ex-husband could select an area around Houston for your child to visit with him, this still makes drop-off and pick-up a logistical nightmare. This is even more true if your ex-husband decides to go back to Fort Hood with your child and then attempt a drive on Sunday night. This puts your child in a position where they have less time with their parent, less time to complete schoolwork and more time in the car. Their sleep, among other things, will suffer.

On the other hand, your family also needs to determine whether or not it is unreasonable to expect that this type of visitation will be the norm. No matter the situation, everybody has to make the best out of the situation that they are dealt with in terms of their family law case. This is not a unique circumstance too military families. No one finds themselves in a perfect circumstance for custody. Rather, even if the logistical experience does not seem to be a positive one, you all have to determine whether or not this is the best that can be done.

What about visitation by mutual consent?

This is an extension of the concept that I was talking about a moment ago. Basically, within the terms of your temporary orders or final orders, you and your Co-parent could agree that each of you can possess your child at any time whereby you both agree to it. This is another open-ended and flexible mode of operation as far as custody is concerned; however, the more flexible and open-ended you get, the more difficult it is to have consistency in custody or a custody strategy.

There are reasonable questions to raise when it comes to the issue of visitation by mutual consent. For example, what if you disagree with your ex-husband that he should have a Thursday night or Wednesday night dinner time with your child? This is standard in a standard possession order. However, you may disagree with it based on your child's schedule or the schedule of your husband, or both. Or we can extend this consideration to a situation where holiday visitation is done by mutual consent. Can you imagine a situation where you want to celebrate Easter with your child but depend on your ex-wife to agree to it?

What is predictable and stable versus what is flexible and accommodating

Military families are often on schedules that are less predictable than civilian families. Forces beyond your control often dictate your schedules. You need to ask yourself what happens if there is no mutual consent simply because your Co-parent is unreasonable or out of hand? Would you be able to solve any potential problems simply by adding a portion into the order that states neither you nor your Co-parent shall be unreasonable and requesting or withholding periods of visitation? Is that something that a family court judge in Texas would even approve?

The need to be as accommodating and flexible as possible in creating custody orders also needs to be balanced up against the need for your child to be able to have a reliable possession schedule, as well as I, need to make sure that your schedule as a mother is consistent and stable. The nice part of having a custody order under his tenure possession order is that there is the knowledge that the child can spend with a Co-parent consistently. This is exactly what you want to achieve as a parent who has gone through a family log case. However, your experience living under military orders and schedules may not allow for that to always be a reality.

Consider simply a situation where your child cannot know when they will be able to see their mother or father next. While this may have already been a reality in their life for some time, given your involvement in the military, adding another layer of uncertainty to the mix cannot be easy. Children thrive on consistency and stability in being able to see their parents. Even if their schedules due to work or other obligations cannot always make this simple, I know most parents go through family law cases and attempt to make this a reality for their children.

When you get right down to a comma, your ability as a military spouse or member to work with your Co-parent and ensure the most stable visitation and possession arrangement possible with your children and your Co-parent is essential to everyone's happiness. Having a disappointed child is sometimes unavoidable. You want to avoid putting yourself in a position where you are disappointing your child unnecessarily due to a family court order that places a burden on both parents to agree on visitation times and schedules. Going through this process one time during a family law case was difficult enough. Asking yourself in your Co-parent to do so over and over again may be asking too much.

In addition to flexibility for you and your Co-parent, you also need to consider flexibility for your child and their schedule. When a child is young, it is not as important to allow for autonomy in their schedule. For the most part, you determined the schedule for your young children. However, as your children age, they will have their interests and will likely seek opportunities to socialize on the weekends and see friends on their terms. While the ultimate authority to allow for such visitation lies with you and your Co-parent, that does not mean that you should completely ignore your child's needs from the perspective of their ability to grow socially. I would say this is especially true if your child has moved quite a bit and is now settling into a more definite social circle.

What should your attorney be working with you on in terms of proposed child custody orders?

When you tell that your attorney that you do not want any definite visitation parameters attached to your court order, that is a significant task that you are making. As I have covered, almost every custody order has some dynamic in a place where there are limitations involved in what can and should not be included in a custody case. Certainly, having an order that can be enforced later on to protect the visitation and possession time you have with your children is what is essential.

You should be prepared to discuss with your attorney what happens if you disagree with your Co-parent or vice versa on an important matter regarding visitation or possession. This is not an easy subject to be able to negotiate your way through. I know that, in theory, it may make sense to work together with your Co-parent on this. Still, the emotions, logistics, and other circumstances surrounding this subject can make it very difficult to negotiate through in practice. You need to make sure that this is something that both you and your Co-parent can stick to if you include it in your court orders.

How creative can you and your Co-parent get?

The right of first refusal is something that parents include from time to time in court orders. This allows the parent who is not supposed to have the children an opportunity to refuse offers of possession if and when a parent cannot fulfill their obligation. For example, suppose that this upcoming weekend was not supposed to be a period of possession for you. However, your military spouse had some training to go to, whereby he could not fulfill his obligation. Under the court orders that you all signed, he must then provide you with a certain period to determine whether or not you would like to take possession of the children. If you choose not to, the children could go to a babysitter or a relative of his.

There are many benefits to including a right of first refusal in court orders for custody, especially for military families. Rather than having your children go with a nonparent during a period of possession, your Co-parent could then gain more time with the kids and eliminate any additional need to take the kids out of their routines for a weekend. Instead of your Co-parent having to lug the kids around from place to place to ensure that they have a place to stay on these types of weekends, you could house the children and ensure more consistency and stability in their housing.

From my experience, this sort of provision works best when you and your Co-parent live within a reasonable distance from one another. For a military family, this is probably the most difficult factor to consider. For instance, a right of first refusal may work well if you live across town from each other but not across the state. You may even find yourselves in a tough position if you live even a few hours from one another, such as if you live here in Houston and your spouse lives at Fort Hood.

What to do if your court orders no longer work?

If you have come to terms with the fact that the court orders in place for custody no longer work for you and your family, then you are in a difficult position, as well. You are relying upon the court orders to be functional for your family. If they no longer function well, then they essentially serve no purpose at all. At that point, the orders are worth less than the paper that they are printed on. You likely then need to ask yourself what you can do to ensure that the orders work as best for your family as possible.

The first thing you can do is work with your Co-parent to create orders working better with your circumstances on an informal level. This means that you would essentially maintain the orders as they stand but would work with your Co-parent to create informal agreements that bypass the actual orders contained in your final decree of divorce or final orders in a suit affecting the parent-child relationship. Keep in mind that you all would need to work together to negotiate through difficult circumstances to accomplish this step.

Even then, working on informal custody modifications is not a good long-term solution. For a long-term solution that works best, you will need to go back to court to request a formal modification. A modification of a court order in the world of family law requires a material and substantial change in the life of you, your Co-parent, or one of your children. This is a fairly high bar but is attainable if military orders or responsibilities have changed or another aspect of your life has changed over the same period.

If your court order has been violated but still works functionally well, you can go back to court to enforce the terms of the court order. If this is the option you choose, you will hopefully have been documenting refusals to allow you to have possession or any other violations of the court order. You must then present these documents and proof in the form of an enforcement petition. This is a way for you to hold your co-parent accountable and to hopefully prevent them from acting in this manner in the first place.

With so many variables in play, you need to stay abreast of any changes with the assistance of an experienced family law attorney. If you are in the military, you likely cannot devote as much time as you would to a child custody case. An experienced family law attorney in Texas can work with your family to ensure the best possible outcomes possible despite the challenges presented by your circumstances.

Questions regarding the information 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 consultations six days a week in person, over the phone, and via video. These consultations are a great way to learn more about the world of Texas family law and to learn more about how your family's circumstances may be impacted by the filing of a divorce or child custody case.

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