Deployment and Child Custody

By Donna Herron, Fort Bliss Legal Assistance Office

When a service member with primary physical custody of a child deploys, the SM may face hard questions. Can the SM leave the child in the care of a third party (i.e. someone other than the other parent)? If the SM does place the child in the temporary custody of the other parent, will the SM lose permanent custody of the child?

While these questions cannot be answered definitively without the specific facts of the individual case, Federal law and Texas state law offer guidance, accommodations, and protections that are tailored to the needs of deployed SMs.

Q:  What state has jurisdiction over the child custody case?

A:  For child custody issues, the SM first needs to determine which state’s law applies and where the child custody dispute must be resolved. State law governs most family law issues; multiple states may come into play in child custody disputes involving SMs. Usually, the state where the child has lived continuously for at least six months prior to the case (or since birth for children less than six months old) will be the child’s home state, and will have jurisdiction over the case.

Child custody jurisdiction can be complicated when, for example, a child has not lived in any state for six consecutive months. For help determining which state has jurisdiction over child custody matters, contact the Fort Bliss Legal Assistance Office.

Q:  Can the SM place their child in the care of a third party during deployment?

A:  It depends. Probably so if the noncustodial parent agrees to the arrangement. If the noncustodial parent wants to provide care for the child and is fit to do so, then probably not.

A SM’s Family Care Plan may specify that a child will stay with a third party, such as a grandparent or a close family friend when the SM deploys. Note, however, that a Family Care Plan is NOT a legal document and does not have any bearing on child custody issues. The SM must comply with a court order that specifies a child custody arrangement, and the Family Care Plan must be consistent with any such order.

When the noncustodial parent agrees or does not dispute the arrangement, a deploying SM can usually place their child in the care of a third party. For example, where the SM and the noncustodial parent have agreed in a parenting plan that a third party will care for a child in case of a SM’s deployment and a court has approved the plan, the SM may follow the plan.

Texas law allows a parenting plan to specify where the child will live during and after deployment whenever one of the parents is a SM (See Texas Family Code Section 153.701-709).

However, if there is no parenting plan and the noncustodial parent wishes to care for the child during the SM’s deployment, a SM will usually need to place the child in the care of the noncustodial parent. Fit parents have rights to participate in certain decisions concerning their children, including where the child will live when the parent with primary physical custody is unavailable to provide care.

For the SM to place the child in the care of a third party during deployment over the objection of the noncustodial parent, the SM will need to convince a court that the noncustodial parent is unfit or that some extraordinary circumstance exists that affects the best interest of the child. Making such a showing can be difficult. In general, a parent is unfit if they engage in behavior that harms or would harm the health, safety and welfare of the child, which often involves physical abuse of the child or drug or alcohol abuse.

Q:  Will the SM lose primary physical custody by placing the child in the temporary custody of the other parent during deployment?

A:  A SM will not lose primary physical custody solely because the SM has deployed or will deploy. However, a court may consider the effect of deployment along with other factors with determining the best interest of the child.

Federal law and Texas law provide some accommodations for SMs, but they do not foreclose the possibility that the noncustodial parent will use the deployment to modify the custody arrangement. The Servicemembers Civil Relief Act, 50 U.S.C. Sections 3931(d) and 3932(b), provides for a minimum of a 90-day stay of civil proceedings for deployed SMs under certain circumstances.

Those provisions provide only limited protection for a SM whose deployment is longer than 90 days. Courts may grant additional stays after 90 days, or they may refuse to do so. Refusal may require the court to appoint counsel to represent the SM.

For more questions, please call (915) 568-7141 or email to schedule an appointment with a legal assistance attorney at Fort Bliss, Texas.