Custody Rights of Veterans & Active Duty Military

Did you know there are about 2 millions members of the active duty and reserve Armed Services? There are many times more veterans. The number of family members is even larger. And like everyone else, some of these relationships don’t work out. So – how does Texas treat these folks? Many service members fear that because of the nature of their profession and duty to their country, they will not be able to exercise their rights to custody, visitation and access to their children. However, being in the military won’t automatically disqualify a person from getting custody, visitation, or access to their children.

How Does the Court Decide Who Gets Custody?

The answer is that, it depends. A Texas court will consider the best interests of the child when deciding who should be the parent that designates the child’s residence (i.e. which parent the child will live with), which is why it depends. The parent with the right to designate the child’s residence is what I will refer to as the “primary parent”. Every case is so different with a different set of facts and parents. The court will examine the specific circumstances in your case to determine if it would be in your child’s best interest to live with you or your ex.

Myth Debunked: Parents that serve in the military do not lose their rights to fight for custody just because they serve.

The court will look at a number of factors when considering a Service member for the “primary parent” position but one of the most important factors considered in cases like this is the availability or presence of the Service member. Here are the factors:

1. How many days/weeks per year is the service member away on duty? If the Service member spends a substantial amount of time away from the child, then it will be a large hurdle to jump over to be designated the primary parent. For example, a court would likely be nervous to make the Service member the primary parent if he/she is usually gone for 8 months out of the year. This is especially likely to be the case if the other parent will be physically present and capable of caring for the child. Though many service members make arrangements for the care of the child while they are working (e.g. daycare, babysitters, etc.), if the other parent will be available, the Court will likely prefer that the child spend that time with the other parent rather than a babysitter, for example. However, if you have close family members that help you with caring for the child when you’re away, the Court could take this into consideration as well.
2. The court will also try to envision what life would be like for the child if the child lived with each parent. Will the child excel in school or will that parent allow the child to get an unreasonable amount of unexcused absences? Will the child be exposed to anything in that parent’s household that will harm the child’s physical or emotional well-being? There is an exponential amount of possible questions the Court could ask to figure out what would be in the best interests of the child.

It’s important to keep mind that even if you are not designated as the primary parent, you have a good chance of still getting as much time with your child as possible.

How Does a Service Member Participate in Litigation While Away?

When a Service member is deployed in the midst of litigation, the Service member will have to find another way of participating since they cannot do so in-person. The Court has a ton of discretion when it comes to allowing a witness to give testimony telephonically and/or video. However, what will be important to the Court will be whether or not the witness’ identity can be discerned. Essentially, the Court has to feel comfortable that the person on the other end of the phone or video is the person that they claim to be. Some judges will be stricter when it comes to allowing this. Other judges will ask the witness the type of questions that the witness and the witness only, should know in order to verify his or her identity, then allow the witness to proceed.

How Do Judge Advocates Come into Play?

If the Judge is still not comfortable enough, a vast majority of Service members have access to a Judge Advocate. The Judge Advocates are active duty officers that are members of the judge advocate general corps. They are required to be licensed attorneys and in good standing in at least one of the states of the Union.

Next Steps

If you are a service member, contact your unit’s judge advocate so that the advocate can use their legal assistance office to help with the process. The legal assistance office will help the Service member gain access to the phone and/or video for the telephonic testimony and will also help verify the identity of the Service member for the Judge. If you are a Service member or are in litigation with a Service member, you should take this entire journey very seriously. You should be sure to hire an attorney that has experience with cases such as yours to best protect your rights.