Military Deployment

o_so_in_love · March 2012

I apologize for the cross post but I am trying to quickly find out some information. Anyone who has a blended family and is a military family, this one's for you... We were scheduled to have my stepdaughter for six weeks this summer. We have already purchased the tickets and they weren't cheap as we just moved to Hawaii. We recently found out that my husband will deploy right before she is supposed to get here. I know stepparents don't have "rights" but I heard that there is some newer act that protects military visitation rights, that the service member can designate his visitation to a family member. I have heard about half of the states have this and I am having trouble finding out which ones do. I have talked with our attorney who needed to research it further but hadn't heard back from her yet. Does anyone know about this and/or if it applies to Texas?

TheBuddha · March 2012

This is probably not super helpful, but I will respond anyway.

DH has custody of SS8. DH is in the national guard. On weekends that SS stays here with us and DH has an overnight military training, BM gets "first right of refusal". This means that if DH isn't here overnight over our weekend, BM can come pick up SS for that night. I have no rights and the court agreed that if DH isn't here all weekend, then BM should have the option to have him.

We haven't had to deal with this yet, but there will be a weekend in the future where it will happen. We'll see what BM does.

If there is any first right of refusal written into your CO, BM may be able to keep the child if your DH is deployed.

I am interested to hear if anyone knows anything about this act that protects military visitation rights as it may help us in the future....

o_so_in_love · March 2012

We too have this refusal clause in our CO. When I asked our attorney about this military protection thing she made it sound like it was not affected by the refusal clause. She said it has only been around since about the time we went into Afghanistan. I know that the Army's deployment rotation is even longer than the Marine Corps. It just doesn't make sense to think that a service member could get deployed for a year and his child can't see their family unless the other parent agrees.

Ginlyn0 · March 2012

If you have the standard order, then you probably don't have much to worry about anyway regardless of the military deployment factor.

The standard order doesn't have a first right of refusal in it and it also says any competent adult may do the pick up or drop off for the NCP.

This website answers alot of questions and the attorney general of texas actually recommends this site: https://www.lanwt.org/txaccess/CHILDVISATATION.asp

Our COs are the basically the standard and anyone her dad wants can come and pick her up and keep her during his visits. Actually about 1/2 of the time her grandparents do just that. During the summer visits, she is with her dad maybe 1 week out of the visit. There is nothing I can do. The same with my SKs.

You should look over the CO and you can contact legal aid to maybe find out specifically about military deployments.

ETA: Just saw that you posted and said you do have first right of refusal. I'm not sure how that would work in your case then.

Holly_1007 · March 2012

this may or may not be helpful and im not trying to be snarky but if your DH is going to be gone for the duration of his visitation with his child why wouldnt you just try to get the visitation changed to a time that he will be around?

Yeah I could go a weekend with my SD if DH was away for something but I don't think I would want to have her for 6 weeks by myself and have DH not even be there to visit with her.

my two cents: try to talk to BM about changing the visitation a little so that SD can be there when DH is there.

o_so_in_love · March 2012

We would change it but he will be gone for the entire summer. We won't see her again until Christmas. We want to spend as much time with her as possible. Since we live in Hawaii and her in Texas we don't get to see her EOWE. She also has siblings here in Hawaii.

Ooglybear · March 2012

? 153.3161. LIMITED POSSESSION DURING MILITARY DEPLOYMENT. (a) In addition to the general terms and conditions of possession required by Section 153.316, if a possessory conservator or a joint managing conservator of the child without the exclusive right to designate the primary residence of the child is currently a member of the armed forces of the state or the United States or is reasonably expected to join those forces, the court shall: (1) permit that conservator to designate a person who may exercise limited possession of the child during any period that the conservator is deployed outside of the United States; and (2) if the conservator elects to designate a person under Subdivision (1), provide in the order for limited possession of the child by the designated person under those circumstances, subject to the court's determination that the limited possession is in the best interest of the child. (b) If the court determines that the limited possession is in the best interest of the child, the court shall provide in the order that during periods of deployment: (1) the designated person has the right to possession of the child on the first weekend of each month beginning at 6 p.m. on Friday and ending at 6 p.m. on Sunday; (2) the other parent shall surrender the child to the designated person at the beginning of each period of possession at the other parent's residence; (3) the designated person shall return the child to the other parent's residence at the end of each period of possession; (4) the child's other parent and the designated person are subject to the requirements of Sections 153.316(5)-(9); (5) the designated person has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and (6) the designated person is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual. (c) After the deployment is concluded, and the deployed parent returns to that parent's usual residence, the designated person's right to limited possession under this section terminates and the rights of all affected parties are governed by the terms of any court order applicable when a parent is not deployed.

Ooglybear · March 2012

*poof*

Ilumine · March 2012

First, there is not a federal "act" that allows a step patient to keep the custody of a child when the AD BP is deployed. The 2012 NDAA section regarding custody ONLY directs courts to TEMPORARILY assign custody of a child for the purposes of deployment Without allowing (the possibility of) deployment to be prejudicially considered against the service member in a custody hearing.

https://www.fas.org/sgp/crs/natsec/R41874.pdf

THis provision was added becuase the courts are not following the previously vague directive I the SSCRA that was supposed to halt ALL legal proceedings against a deployed service member.

But many judges ignored THAT federal law...for a variety of reasons. Given the NDAA hasnt been voted on yet...even if it DID apply to your situation, it's to been approved so your SOL.

Second, even if it WERE approved, this becomes a clear constitutional issue, with States vs Federal rights. A Family Court judge could (and they have, given they are ignoring thenSSCRA) say that this is not int the best interest of the child and ignore it.

It would then be up to the ADSM finding enough money to take the court through the appeals process...probably all the way to the Supreme. Court.

I know I sound defeatist, but the reality is...being in the military brings some carpy side issues that people just do not think about before they procreate. Do I think that a SP should be able to see their SKs when the AD BP is gone, you betcha.

But at the same time, were I too be the BM seeing my child off for 6 whole weeks where she isn't even seeing her father...I would say hell no. I would give a week, but not 6.

That is one of the downsides you get being in the military.

Ilumine · March 2012

OP, just to make sure you don't think I am a military hating poster, my Dad is a retired Light Bird, my husband is soon to be retired Cheif Master Seargent (E9) in the USAF and I spent 9 years as a lobbyist for one of the biggest Military Associations on Capitol Hill.

I bleed military benefits.

But I also believe in common sense and after having my own child, what is best for the child is not always what is best for the ADSM (my DH even agrees with me. He firmly believes that the child needs to stay with the BP during deployments - a week visit yes, more than that no)

Ooglybear · March 2012

Illumine: Just to be clear, what I quoted above is from the Texas family law code, not federal law. Since she specified TX, I am assuming that it applies to her situation. I don't think she'll necessarily get the full 6 weeks in the summer, but she certainly can get something.

TheBuddha · March 2012

Ilumine:

OP, just to make sure you don't think I am a military hating poster, my Dad is a retired Light Bird, my husband is soon to be retired Cheif Master Seargent (E9) in the USAF and I spent 9 years as a lobbyist for one of the biggest Military Associations on Capitol Hill.

I bleed military benefits.

But I also believe in common sense and after having my own child, what is best for the child is not always what is best for the ADSM (my DH even agrees with me. He firmly believes that the child needs to stay with the BP during deployments - a week visit yes, more than that no)

Even if the child was removed from that BP's home because of a bad situation? What if the current CP took custody away from the other BP for a good reason? What if being kept in the home with the SP is better for the child?

This statement is very black and white and blended families most definitly do not fall into black and white categories.

Ilumine · March 2012

TheBuddha:
Ilumine:

OP, just to make sure you don't think I am a military hating poster, my Dad is a retired Light Bird, my husband is soon to be retired Cheif Master Seargent (E9) in the USAF and I spent 9 years as a lobbyist for one of the biggest Military Associations on Capitol Hill.

I bleed military benefits.

But I also believe in common sense and after having my own child, what is best for the child is not always what is best for the ADSM (my DH even agrees with me. He firmly believes that the child needs to stay with the BP during deployments - a week visit yes, more than that no)

Even if the child was removed from that BP's home because of a bad situation? What if the current CP took custody away from the other BP for a good reason? What if being kept in the home with the SP is better for the child?

This statement is very black and white and blended families most definitly do not fall into black and white categories.

You will need to address this with your lawyer and maybe the court. Given your DH has full. Opus today and BM has visitation, she would have to petition the court for a change in custody again. Given SSCRA (which your DH will need to have his lawyer use) and givng YOU a POA, that might be enough.

But I am not a lawyer and each state does things differently and follows SSCRA differently.

TheBuddha · March 2012

Ilumine:
TheBuddha:
Ilumine:

OP, just to make sure you don't think I am a military hating poster, my Dad is a retired Light Bird, my husband is soon to be retired Cheif Master Seargent (E9) in the USAF and I spent 9 years as a lobbyist for one of the biggest Military Associations on Capitol Hill.

I bleed military benefits.

But I also believe in common sense and after having my own child, what is best for the child is not always what is best for the ADSM (my DH even agrees with me. He firmly believes that the child needs to stay with the BP during deployments - a week visit yes, more than that no)

Even if the child was removed from that BP's home because of a bad situation? What if the current CP took custody away from the other BP for a good reason? What if being kept in the home with the SP is better for the child?

This statement is very black and white and blended families most definitly do not fall into black and white categories.

You will need to address this with your lawyer and maybe the court. Given your DH has full. Opus today and BM has visitation, she would have to petition the court for a change in custody again. Given SSCRA (which your DH will need to have his lawyer use) and givng YOU a POA, that might be enough.

But I am not a lawyer and each state does things differently and follows SSCRA differently.

I appreciate your knowledge and advice. Thank you.

Tasheystar · April 2012

When my husband was deployed I barely saw SD. They have no CO in writing, she didn't like me, and we didn't have the money to deal with it while he was gone. I hope you have better luck.

(I say 'she didn't like me' because I think now, she might be ok with me? I picked SD up for the first time a while back and she was really nice to me. Maybe we've moved beyond jealousy?)

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