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San Antonio, TX Family Law and Military Divorce Blog

Friday, January 10, 2014

Temporary Custody During Military Deployment

A question that comes up quite often among unmarried and remarried military parents is this: who gets custody of your child when the military parent is ordered to deploy?  Is it the new spouse who is the child's stepparent?  Is it the other parent?  Is it someone else?  The answer contains three key components.  Let's briefly discuss all three.

First, know that your military Family Care Plan only satisfies your obligation to the Department of Defense.  Any temporary custody designation in your Family Care Plan does not trump State law.  In other words, if the other parent brings legal action to get temporary custody during your deployment, the fact that your Family Care Plan designates your new spouse as custodian will have no influence on the court proceeding.

Second, the State that has jurisdiction over the issues of custody, visitation and support for your child matters.  If an existing court order was rendered in a State other than Texas, then the laws of that State may drive the answer.  It all depends on the facts of your situation.  A qualified attorney can answer the question of which State has jurisdiction only after discussing the facts of your situation with you.

Third, if Texas has jurisdiction, then the answer is driven by section 153.703 of the Texas Family Code.  The hierarchy of preference for who gets custody during your deployment goes like this:

  1. The other parent will get custody under temporary court orders.
  2. If appointing the other parent is not in the child's best interest, then a person designated by the deploying military parent will get custody under temporary court orders.
  3. If neither of the above options prove to be in the child's best interest, then some other person chosen by the court will get custody under temporary court orders.

A court's temporary orders terminate automatically when the military parent returns from deployment.  There is no need to return to court to "reset" things. 

The Texas Attorney General's Office published a handbook entitled "Military Parents: Paternity, Child Support, Custody & Parenting Time" that provides a brief discussion of this and other related issues.  While the law itself often is more nuanced than the handbook presents, the handbook's discussion remains a useful resource and starting point for military and other parents. 

My next blog post will discuss one of those related issues laid out in the handbook.  When a military parent without custody is ordered to deploy, who can exercise visitation during that parent's absence?  Stay tuned.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. Jim retired from the U.S. Air Force in the grade of colonel after having served 29 1/2 years active duty.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


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