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Military Divorce

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.


Wednesday, October 23, 2013

Servicemembers Civil Relief Act—Not Every Default Judgment is Invalid

Serious misconceptions exist about the Servicemembers Civil Relief Act (formerly known as the Soldiers and Sailors Civil Relief Act).  Some military members believe that if they don’t appear in court, nothing bad can happen.  They believe military service entitles them to absolute protection.  Wrong.   When the member later appeals, they believe mere mention that “I was on active duty at time of the hearing” will force a court to throw out any default judgment.  Wrong again.

Section 521 of the Act states that a court does not have to overturn a default judgment unless the military member proves two elements:

(1)    The member’s military service “materially affected” his or her ability to present a defense; and

(2)    Had they presented a defense, it would have been “meritorious” (i.e. legally valid).

A real life example should help clarify.

In 2009, the ex-wife of an active duty Army member brought an action to increase child support.  The member had been served with notice of the hearing, but didn’t appear.  A default judgment was entered that granted the increase.  The member stated that he’d learned of the default judgment when the Defense Finance and Accounting Service (DFAS) began to garnish more of his paycheck.  The member then appealed in an effort to get the judgment thrown out. 

His appeal boiled down to two statements.  First, he’d been “in full duty uniform when he was served” with notice of the hearing.  Second, he’d been busy for the six weeks prior to the hearing “preparing for deployment to Iraq.” 

The court denied his appeal because he’d not shown that he was entitled to relief under the Act.  The court observed that he’d failed to demonstrate how his military service materially affected his ability to present a defense.  The court listed the key facts against him.  He hadn’t been deployed in the six weeks leading up to the hearing.  Rather, he’d been at a base in the continental United States “preparing for deployment.”  He hadn’t attempted to request a “stay” in the proceedings.  He hadn’t filed an answer.  He hadn’t proved that he’d requested leave to attend the hearing and been denied.  In sum—and despite having notice—he’d done nothing to satisfy the first element.

The court further reasoned that he’d failed to satisfy the second element as well.  He’d failed to demonstrate that had he been allowed to present a defense, it would have been meritorious.  It’s likely he had no meritorious defense.  After all, he couldn’t allege the child wasn’t his.  His paternity had been established in the prior court proceeding.  He couldn’t dispute that his pay had increased since the prior order.  His Leave and Earnings Statement (LES) would prove that.  Perhaps—and only if true—a meritorious defense might have been that he’d recently lost a stripe in an Article 15 action and his current pay was actually less—not more—than his ex-wife and the trial court believed.  Again, that’s only brainstorming a possibility.  The governing reality remained that he’d made no attempt to state a meritorious defense.

Here’s the key takeaway so you don’t make the same mistake.  If a military member with notice fails to appear in court, the mere fact he or she was on active duty at time of the hearing is not enough to prevent a default judgment from being entered and enforced.  More is required.  Now you know better.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

For attorneys, this blog post draws upon the following case: In the Interest of K.B., 298 S.W.3d 691 (Tex. App.—San Antonio 2009, no pet.).


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