Handling Child Custody when PCS means relocating
When you are a part of a military family and deal regularly with relocations, child custody agreements in Texas can become even trickier to handle. Military relocation and child custody combined can create a complex set of challenges. You must navigate the geographic restrictions specified in your final divorce decree in addition to prioritizing the best interests of any children involved.
Permanent Change of Station (PCS) often means moving across the country or even across the world. While PCS is a necessary and inevitable part of military life, that does not mean that both parents who have chosen to divorce will see eye-to-eye regarding whether or not a child should relocate – potentially oceans away – from the other parent.
However, it’s not just parental preference that has the final say in Texas when military relocation and child custody questions arise. Texas child custody relocation law provides parameters that your family law lawyer can help you navigate. Your legal team will also review with you the parenting plan that was part of your final Decree of Divorce signed by a judge and should be able to explain your options moving forward.
While each case is unique and best advised by an experienced family lawyer who works with military family divorce cases, there are some overarching considerations to keep in mind if you or an ex-spouse is planning for a relocation:
Terms of Military Relocation and Child Custody
Your orders may already address relocation if you are a military family. However, if they don’t, then you will be treated as any other family before the court.
The parent with the exclusive right to designate the primary residence (the guardian that most people often associate with the term of “having custody”) cannot simply decide to move the kids outside of the geographic restrictions that are stated in the finalized divorce documents. The parent can move themselves, but would need to leave the child behind.
he only way to relocate the child would be by seeking a modification to the Decree of Divorce or SAPCR (Suit Affecting the Parent-Child Relationship) order.
For reference for divorced co-parents in Texas, geographic restrictions are typically based on: (1) the county where the child(ren) resides and (2) the county and those that surround it where the order was signed (i.e. Travis County and Williamson County, Hays County, Caldwell County, Blanco County and Burnet County in Central Texas).
Seeking to Change Child Custody Orders
If your custodial orders are already in place and do not contain a provision related to military relocation, then you can work with the court along with your child’s other parent to modify the prior orders.
However, there are some important points to know and discuss with your family attorney before you decide to apply for a child custody modification:
- Custody orders are typically governed by individual state laws, not federal laws, and those state custody laws will be the basis for the court’s ruling if you request permission to relocate with your child.
- Some states require you to show how a move will be in the best interest of your child(ren) when making a request to move and retain custody, while others might require proof of compelling circumstances in order to grant a relocation. In Texas, children’s rights in divorce are outlined in the Texas Children’s Bill of Rights.
Relocation cases can sometimes be contested and represent the majority of trials and jury trials. The other parent may not agree to having the child or children move to another state or country. If the other parent moves out of the geographic area first, then the restriction is typically lifted.
These are difficult and complex cases where the parent wanting to move the child must show that it is in the best interest of the child to do so. The Military One Source website provides additional information and resources for parents dealing with military divorce. Children deserve their wellbeing to be handled with care.
Custody Modification Considerations for Deployed Parents
The Service Members Civil Relief Act (SCRA) covers all active duty service members, reservists, and members of the National Guard while on active duty. The protection provided by SCRA begins on the date the service member enters active duty and generally terminates within 30 to 90 days after discharge.
SCRA includes language indicating that courts cannot use military deployment as a reason for denying service members child custody.
Specifically, under the SCRA, you can:
- Obtain a stay or postponement of court or administrative proceedings if your military service materially affects your ability to proceed in your custody case.
- Get an automatic stay of 90 days in the proceedings when you request this protection in writing – any additional delay beyond the 90-day stay is given at the discretion of the judge, magistrate, or hearing officer.
What this means is that if your spouse attempts to change the child custody status while you are deployed, you can invoke your rights under the SCRA to postpone the hearing.
Unless the parents (and anyone else named as a guardian or “conservator”) agree, the court can’t permanently change custody just because a military parent has been deployed. However, either parent can ask the court for temporary orders that temporarily change custody during deployment.
In this case, the court’s first choice for temporary custody will typically be the other parent. If living with the other parent would not be in the child’s best interest, the court’s second choice must be a person designated by the military parent. The court’s third choice would be a person chosen by the court.
The court may also make temporary changes to child support and visitation. For example, the court may temporarily change who pays child support. Or the military parent may ask the court to allow a designated person, such as a grandparent or step-parent, to visit the child while the military parent is deployed.
When the military deployment ends, the temporary orders end.
Seek Help When Navigating Child Custody as a Military Family
Divorce is never easy, but when either or both spouses are in the military, the process can be even more difficult. Understanding how Texas military divorce laws could affect your family is important.
Talking to a Texas divorce lawyer experienced with military divorces is critical so you will be able to protect your legal rights and obtain the best settlement for you and your children. Kelly J. Capps is a knowledgeable family law attorney with experience handling military divorce cases, and she is dedicated to finding the best path forward for her clients and their families.
If you would like to discuss your family law matter and/or any concerns that you may have about whether or not you are ready to file for divorce, contact our office or call our office at (512) 338-9800.
