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Texas Family Law in the Military Combat Zone
By Donald L. Williams

Representing military personnel and their family members in Family Law related matters in peacetime can be one of the most challenging legal undertakings presented to the Family Law Practitioner. Now add a war and combat to the equation and a totally different set of problems, situations and challenges emerges that is unparalleled in representing their civilian counterparts. The purpose of this paper is to provide practical tips and insights, and to demystify the issues and highlight the uniqueness of this field of practice. As a result, there can be a better understanding of the culture, needs and special requirements demanded by the military family’s status especially when the servicemember is in a war zone. Ultimately, a better representation of the military client and the family can be had in the civil court system. It is not the intent of this paper to give definitive answers; however, it will raise definitive questions that must be resolved.

KNOW THE CULTURE OF YOUR CLIENT

When a potential military client makes an appointment to see you, insure that the intake staff is instructed to get their rank. Not only is it a sign of respect to address military personnel by their rank, but it will also give you an insight as to the relevant complexity of your case and the client’s ability to pay. It is disrespectful to call a commissioned officer “Mister.” “Mister” is a title reserved for warrant officers; a subordinate rank to a commissioned officer. An eagle insignia in the army could be a “specialist” (E-4) or a “Colonel” (O6). Know and study the rank structure. You may call all male soldiers “Sir” and be within the bounds of protocol. You may address all female military personnel as “Ma’am” and dodge the bullet. Familiarity terms may be interjected as you get to know your client.

Note that military clients may not be able to wait a week for an appointment. Stress and short time-frames are part and parcel of their daily existence. If at all possible give them special consideration when scheduling appointments.

In the initial interview always include concepts and terms such as Home of Record, Deployment, Re-deployment, LES, Basic Entry Pay Date, PCS, DIEMS, Relocation, TDY, Rotation, BAH, BAS, Unit, Chain of Command, email address, cell phone number.

The initial interview MUST be precise, concise, timely and highly informative for both of you. It may be your last face to face encounter.

JURISDICTION

Spend considerable time on jurisdictional matters. The state of Texas may have jurisdiction over your client and not the Respondent or the children. The court may have jurisdiction over the parties, but not the property. The court may have jurisdiction over both parties for divorce purposes, but not over the division of the military retirement.

SERVICE OF PROCESS

Service of process is another concern when the Respondent is stationed on a military reservation; when the Respondent is on a ship in the United States or overseas; or on a base or post or living on the economy overseas.

A common example is a Petitioner domiciled in Texas. The Respondent has never been to Texas; the Respondent is a resident of Washington State. The Respondent is in the process of PCSing to Germany; and, upon arrival at his unit in Germany he is being deployed to Iraq.

Where is effective service and how is it executed?

SERVICE MEMBERS CIVIL RELIEF ACT (SCRA )

If you can get him served, what rights does he have under the Servicemembers Civil Relief Act? If children are involved, can he use those rights to defer the payment of child support? Can the family be left without adequate support, shelter, transportation and benefits because he invokes his rights and claims that his military duties will not allow him to address these matters in court at this time?

ARMY FAMILY SUPPORT REQUIREMENTS (AR 608-99)

In advising the military family member, do you tell him/her that the servicemember can shirk his financial responsibility to his family because there is no court order or agreement establishing his financial obligations? What, if any, duty or obligation does the military impose upon servicemembers, absent court intervention, to support their family members? The practitioner MUST become familiar with AR 608-99 and be able to advise the family member of the chain of command and the other resources available when situations of this nature occur.

ESTABLISHMENT, COLLECTION AND ENFORCEMENT OF CHILD SUPPORT

To adequately address the needs of the military client, the practitioner must know what other agencies and entities are available to establish and collect child support for military families. How do these agencies partner with the federal government in insuring that military children are adequately supported financially?

What are the avenues available to mobilized reservists to adjust their child support obligations when their civilian income was $90,000.00 per year and the income of a mobilized sergeant is considerably less? How soon can that be done? Will a court hearing have to be scheduled? Can it be done before he/she leaves?

To properly counsel or advise military clients concerning child support, one must have the requisite tools and knowledge concerning military rank, longevity, pay and allowances. One must know what is taxable and non-taxable income; the differences between BAH and BAH II (RC /T) (Basic Allowance for Housing); BAS (Basic Allowance for Subsistence). What significance is the distinction between “Pay” and “Allowance”? Is income different when a servicemember is stationed in a “Combat Zone”? What is a combat zone and how can we determine what or where a combat zone is?

UNIQUE PARENT-CHILD ISSUES

Even though the weight of the information and cases appear to disfavor the uprooting of children, moving, deployments and relocation is part of the military culture and existence. What can military families expect in a divorce and custody when the parties are not originally from the area where they are stationed; and, for good reason the spouse with the children wants to move back to familiar and more supportive surroundings? Who pays for traveling expenses for visitation purposes? How should expenses be allocated? What if visitation is overseas?

What problems or issues are presented to military children that move from base to base, state to state and country to country? Is there any detriment to their development? What facilities are available to assist them? How good are the DOD schools? Do children of deployed servicemembers experience additional issues brought on by the deployment?

MILITARY RETIREMENT CALCULATION, DRAFTING, ACCEPTANCE, CLARIFICATION AND ENFORCEMENT

The clients may ask, what portion, if any, of the military retirement am I entitled? What is the “10 Year Rule?” What is “HIGH 3”?

Who pays for the SBP (Survivor’s Benefit Plan)? If I remarry do I lose my military retirement benefit? What is the 20/20/20 Rule? What is the 20/20/15 Rule? How does the servicemember’s VA Waiver affect my retirement award? What is concurrent receipt? What is the Combat Related Special Compensation (CRSC)? How do they affect my military retirement award? Why did DFAS (Defense Finance and Accounting Service) say that my divorce decree has to be clarified in order for me to get my award? What are the procedures for me to take in order for DFAS to accept my retirement application and/or my SBP election?

FAMILY RELATED ASPECTS OF THE UCMJ

Your interview may include the aspects of criminal non-support and fraud, domestic abuse, adultery as a criminal offense and whether it is advantageous to raise the issue; how debt, bankruptcy and NSF checks can affect a career or security clearance; why separation agreements and military family care plans may have no effect in family courts.

TEXAS FAMILY CODE PROVISIONS  §6.303 of the Texas Family Code is entitled “ABSENCE ON PUBLIC SERVICE ”.

 It provides as follows: Time spent by a Texas domiciliary outside this state or outside the county of residence of the domiciliary while in the service of the armed forces or other service of the United States or of this state is considered residence in this state and in that county.

Periods of absence from the state for service in the military are not counted against you when counting time towards being a Texas resident and a resident of a particular county.

§ 6.304 of the Texas Family Code “ARMED FORCES PERSONNEL NOT PREVIOUSLY RESIDENTS ” states:

A person not previously a resident of this state who is serving in the armed forces of the United States and has been stationed at one or more military installations in this state for at least the last six months and at a military installation in a county of this state for at least the last 90 days is considered to be a Texas domiciliary and a resident of that county for those periods for the purpose of filing suit for dissolution of a marriage.

Likewise, a person who was not previously a resident of this state but who serves in this state on military service may claim residence in the state for purpose of filing a divorce.

This section can be read to allow for a status divorce for a service member who may have previously been domiciled in a state other than Texas as long as he meets these criteria. See Fox v. Fox, 559 S.W.2d 407 (Texas App. Austin 1977, no writ) decided under the predecessor statute Tex. Family Code Ann. Section 3.23 (1995). Please note that this statute does not confer jurisdiction over the SAPCR part of the lawsuit, nor does it allow a Texas Court to divide property located outside of this state.

REPEALED: Source SB 279. Effective 9/1/09 § 153.3161 of the Texas Family Code is entitled “POSSESSION DURING MILITARY DEPLOYMENT”.

It is a new provision that was added in 2005 and amended effective September 1, 2007. It is effective for SAPCRS pending on or after June 18, 2005 or September 1, 2007, respectively. The court must honor the wishes of a service member or soon to be service member (who is not a person with the exclusive right to designate the child’s residence) who designates someone else to exercise possession of the child during periods of deployment outside the U.S. The court must still determine that the possession is in the child’s best interest. The amendment expands the possession beyond one weekend per month and defines “military deployment” to mean duty of more than six (6) months at a location where access to the child is not reasonably possible and where the servicemember lacks the option to be accompanied by the child. During these times of possession, the person designated has the rights and duties of a non-parent and they are subject to any provisions of the order that restrict or prohibit access to the child by any other person. The designee’s right to possession ends after the deployment is concluded and that person returns to their usual residence.

Please note that the pick up and return of the child contemplate surrender and return to the other parent’s residence. Thus, an out of town designated person would have to come into town and get the child and return the child to the same place. The designee does not have to be a related person; however, should the deployed person select a designee that is unknown to the child, the court might well find that such possession is not in the child’s best interest. Remember that this provision allows a non-custodial parent to exercise rights and does not apply to a parent with the exclusive right to decide the child’s residence. What happens in a JMC case in which neither parent has the right to decide the child’s residence? Clearly the Code does not intend for the fact of deployment to allow a parent to designate a person to stand in for the “primary parent”.

NEW FAMILY CODE PROVISIONS SPECIFICALLY AFFECTING THE DEPLOYED MILITARY SERVICE MEMBER EFFECTIVE 9/1/09

§153.3162 Additional Periods of Possession Or Access After Conclusion of Military Deployment. Source HB 409 Effective 9/1/09 ADDED

 (a) In this section, “conservator” means: (1) a possessory conservator of a child; or (2) a joint managing conservator of a child without the exclusive right to designate the primary residence of the child.

(b) Not later than the 90th day after the date a conservator who is a member of the armed services concludes the conservator’s active military deployment, the conservator may petition the court to: (1) compute the periods of possession of or access to the child to which the conservator would have otherwise been entitled during the conservator’s deployment; and (2) award the conservator additional periods of possession of or access to the child to compensate for the periods described by Subdivision (1).

(c) If a conservator petitions the court under Subsection (b), the court: (1) shall compute the periods of possession or access to the child described by Subsection (b)(1); and (2) may award to the conservator additional periods of possession of or access to the child for a length of time and under terms the court considers reasonable, if the court determines that: (a) the conservator was deployed in a location where access to the child was not reasonably possible; and (b) the award of additional periods of possession of or access to the child is in the best interest of the child.

(d) In making the determination under Subsection (c)(2), the court: (1) shall consider: (a) the periods of possession of or access to the child to which the conservator would otherwise have been entitled during the conservator’s deployment, as computed under Subsection (c)(1); (b) whether the court provided in an order under Section 153.3161 that a person exercise limited possession of the child during the conservator’s deployment; and (c) any other factor the court considers appropriate; and (2) is not required to award additional periods of possession of or access to the child that equals the possession or access to which the conservator would have been entitled during the conservator’s deployment, as computed under Subsection (c)(1).

(e) After the conservator has exercised all additional periods of possession or access awarded under this section, the rights of all affected parties are governed by the terms of any court order applicable when the conservator is not deployed.

Source: HB 409 Eff. Date: 9/1/09-applies to SAPCR/ Modification pending/filed on or after 9/1/09

Subchapter L. Military Duty- ADDED § 153.701. Definitions. In this subchapter:

(1) “Designated person” means the person ordered by the court to temporarily exercise a conservator’s rights, duties, and periods of possession and access with regard to a child during the conservator’s military deployment, military mobilization, or temporary military duty.

(2) “Military deployment” means the temporary transfer of a service member of the armed forces of this state or the United States serving in an activeduty status to another location in support of combat or some other military operation.

(3) “Military mobilization” means the call-up of a National Guard or Reserve service member of the armed forces of this state or the United States to extended active duty status. The term does not include National Guard or Reserve annual training.

(4) “Temporary military duty” means the transfer of a service member of the armed forces of this state or the United States from one military base to a different location, usually another base, for a limited time for training or to assist in the performance of a noncombat mission.

§ 153.702. Temporary Orders.

(a) If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to a child, either conservator may file for an order under this subchapter.

(b) The court may render a temporary order in a proceeding under this subchapter regarding: (1) possession of or access to the child; or (2) child support.

(c) A temporary order rendered by the court under this subchapter may grant rights to and impose duties on a designated person regarding the child, except the court may not require the designated person to pay child support.

(d) After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order applicable when the conservator is not ordered to military deployment, military mobilization, or temporary military duty.

§ 153.703. A ppointing Designated Person For Conservator With Exclusive Right To Designate Primary Residence Of Child.

(a) If the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may render a temporary order to appoint a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference: (1) the conservator who does not have the exclusive right to designate the primary residence of the child; (2) if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or (3) if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.

(b) A designated person named in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371.

(c) The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate to the best interest of the child.

§ 153.704. A ppointing Designated Person To Exercise Visitation For Conservator With Exclusive Right To Designate Primary Residence Of Child In Certain Circumstances.

(a) If the court appoints the conservator without the exclusive right to designate the primary residence of the child under Section 153.703(a)(1), the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.

(b) The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order is rendered.

(c) The temporary order for visitation must provide that: (1) the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date the temporary order is rendered; (2) the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator; (3) the designated person under this section 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 (4) the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.

(d) The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the best interest of the child.

§ 153.705. A ppointing Designated Person To Exercise Visitation For Conservator Without Exclusive Right To Designate Primary Residence Of Child.

(a) If the conservator without the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by the conservator, if the visitation is in the best interest of the child.

(b) The temporary order for visitation must provide that: (1) the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty; (2) the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator; (3) the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and (4) the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.

(c) The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the best interest of the child.

§ 153.706. Temporary Order For Child Support.

A temporary order rendered under this subchapter may result in a change of circumstances sufficient to justify a temporary order modifying the child support obligations of a party.

§ 153.707. Expedited Hearing.

(a) On a motion by the conservator who has been ordered to military deployment, military mobilization, or temporary military duty, the court shall, for good cause shown, hold an expedited hearing if the court finds that the conservator’s military duties have a material effect on the conservator’s ability to appear in person at a regularly scheduled hearing.

(b) A hearing under this section shall, if possible, take precedence over other suits affecting the parent-child relationship not involving a conservator who has been ordered to military deployment, military mobilization, or temporary military duty.

(c) On a motion by any party, the court shall, after reasonable advance notice and for good cause shown, allow a party to present testimony and evidence by electronic means, including by teleconference or through the Internet.

§ 153.708. Enforcement.

Temporary orders rendered under this subchapter may be enforced by or against the designated person to the same extent that an order would be enforceable against the conservator who has been ordered to military deployment, military mobilization, or temporary military duty.

§153.709. Additional Periods Of Possession Or Access.

(a) Not later than the 90th day after the date a conservator without the exclusive right to designate the primary residence of the child who is a member of the armed services concludes the conservator’s military deployment, military mobilization, or temporary military duty, the conservator may petition the court to: (1) compute the periods of possession of or access to the child to which the conservator would have otherwise been entitled during the conservator’s deployment; and (2) award the conservator additional periods of possession of or access to the child to compensate for the periods described by Subdivision (1).

(b) If the conservator described by Subsection (a) petitions the court under Subsection (a), the court: (1) shall compute the periods of possession or access to the child described by Subsection (a)(1); and (2) may award to the conservator additional periods of possession of or access to the child for a length of time and under terms the court considers reasonable, if the court determines that: (a) the conservator was on military deployment, military mobilization, or temporary military duty in a location where access to the child was not reasonably possible; and (b) the award of additional periods of possession of or access to the child is in the best interest of the child.

(c) In making the determination under Subsection (b)(2), the court: (1) shall consider: (a) the periods of possession of or access to the child to which the conservator would otherwise have been entitled during the conservator’s military deployment, military mobilization, or temporary military duty, as computed under Subsection (b)(1); (b) whether the court named a designated person under Section 153.705 to exercise limited possession of the child during the conservator’s deployment; and (c) any other factor the court considers appropriate; and (2) is not required to award additional periods of possession of or access to the child that equals the possession or access to which the conservator would have been entitled during the conservator’s military deployment, military mobilization, or temporary military duty, as computed under Subsection (b)(1).

(d) After the conservator described by Subsection (a) has exercised all additional periods of possession or access awarded under this section, the rights of all affected parties are governed by the terms of the court order applicable when the conservator is not ordered to military deployment, military mobilization, or temporary military duty.

Source: SB 279 Eff. Date: 9/1/09-applies only to SAPCR pending on or filed on or after 9/1/09

§ 156.006(b). Temporary Orders- AMENDED

(b) While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless the temporary order is in the best interest of the child and: (1) the order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; (2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months [and the temporary order is in the best interest of the child]; or (3) the child is 12 years of age or older and has expressed to [filed with] the court in chambers as provided by Section 153.009 [in writing] the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child [and the temporary order designating that person is in the best interest of the child]. Source: HB 1151 Eff. Date: 9/1/09-applies only to SAPCR pending on or filed on or after 9/1/09

§ 156.006(c). Temporary Orders-ADDED

(c) Subsection (b)(2) does not apply to a conservator who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701. Source: SB 279 Eff. Date: 9/1/09-applies only to SAPCR pending on or filed on or after 9/1/09

§ 156.101. Grounds For Modification Of Order Establishing Conservatorship Or Possession And Access. AMENDED/ ADDED

(a) The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and: (1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of: (a) the date of the rendition of the order; or (b) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; (2) the child is at least 12 years of age and has expressed to [filed with] the court in chambers as provided by Section 153.009 [, in writing,] the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child; or (3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

(b) Subsection (a)(3) does not apply to a conservator who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701. Source: HB 1012 & SB 279 Eff. Date: 9/1/09-applies only to suits for modification on or filed on or after 9/1/09 § 156.102(d). Modification Of Exclusive Right To Determine Primary Residence Of Child Within One Year Of Order - ADDED (d) Subsection (b)(3) does not apply to a person who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701.

Source: SB 279 & HB 1012 Eff. Date: 9/1/09-applies only to SAPCR pending on or filed on or after 9/1/09

§156.105 “MODIFICATION OF ORDER BASED ON MILITARY DEPLOYMENT” is also a new provision that applies to suits pending or filed after June 18, 2005 and the amended provisions apply to cases pending or filed after June 15, 2007. It provides that deployment, in and of itself, is a material and substantial change of circumstance sufficient for a modifying order regarding possession or access to a child. If the court finds that modification is in the best interest of the child, the court may modify to provide for the possession found in Section 153.3161(REPEALED). May the court order more than just those mentioned in §153.3161(REPEALED)? Why does this provision discuss access when the related section does not? Most likely, this is just a section that addresses the burden of proof in such cases by stating that the deployment alone will meet the first prong of the modification burden with the deploying parent still having the burden of proving best interest. This provision contains the same definition of “military deployment” as stated above.

§ 156.105. Modification Of Order Based On Military Duty [DEPLOYMENT]- AMENDED

[(a) In this section, “military deployment” means military duty ordered for a period of more than six months during which the person ordered to duty: [(1) is not provided the option of being accompanied by the person’s child; and [(2) is serving in a location where access to the person’s child is not reasonably possible. [(b)] The military duty of a conservator who is ordered to military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701, does not by itself constitute [of a person who is a possessory conservator or a joint managing conservator without the exclusive right to designate the primary residence of the child is] a material and substantial change of circumstances sufficient to justify a modification of an existing court order or portion of a decree that sets the terms and conditions for the possession of or access to a child except that the court may render a temporary order under Subchapter L, Chapter 153. [(c) If the court determines that modification is in the best interest of the child, the court may modify the order or decree to provide in a manner consistent with Section 153.3161 for possession of the child during the period of the military Source: SB 279 Eff. Date: 9/1/09-applies only to SAPCR pending on or filed on or after 9/1/09

Subchapter E – Modification Of Child Support § 156.410. Change In Circumstances Resulting From Military Service - REPEALED Source: HB 1012 Eff. Date: 9/1/09

§156.410 “CHANGE IN CIRCUMSTANCES RESULTING FROM MILITARY SERVICE” REPEALED was enacted in 2003 and amended in 2005. It ties into Section 156.401 regarding grounds for modifying child support. It provides that the call up into active military service is a material and substantial change in circumstances provided that the active service is for at least 30 consecutive days and it results in a decrease of the net resources of the obligor during the service. Such a modification motion has unique procedural requirements to include that the obligor’s commanding officer must provide an affidavit that states the start and end date of the service and the anticipated monthly gross income from the service. Return from service is a material and substantial change should the obligee later file a motion to modify if the court previously modified the support order. Clearly, this contemplates an almost automatic reduction and later increase of support should the military service result in a downward change of income for the obligor. Please note that it only applies one way- to a decrease in net resources. This does not mean that a modification to increase support is not warranted, only that the regular modification provisions of Section 156.401 would apply to such a case.

CHAPTER 161 – TERMINATION OF THE PARENT-CHILD RELATIONSHIP § 161.001.

Involuntary Termination Of Parent-Child Relationship - AMENDED

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence: (T) been convicted of: (i) the murder of the other parent of the child under Section 19.02 or 19.03, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 19.02 or 19.03, Penal Code; (ii) criminal attempt under Section 15.01, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 15.01, Penal Code, to commit the offense described by Subparagraph (i); or (iii) criminal solicitation under Section 15.03, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 15.03, Penal Code, of the offense described by Subparagraph (i);

Source: SB 1838 Eff. Date: 9/1/09-applies only to SAPCR filed on or after 9/1/09

KNOW YOUR RESOURCES

The military has a plethora of individuals, entities and agencies that are available to assist the servicemembers and their families in crises. Often many situations can be resolved without resorting to the judicial system. It is imperative that the Family Law Practitioner have available the resources to which he can refer the military client. The resources include but are not limited to the following:

1. The servicemember’s Chain of Command. 2. The Post Legal Assistance Office (SJA) 3. Claims (SJA) 4. Trial Defense Service 5. The Unit Chaplain 6. The Inspector General 7. AER (Army Emergency Relief) 8. Family Advocacy 9. Finance 10. Housing 11. Transportation 12. TRICARE 13. Red Cross 14. Mental Health 15. CID/MPs 16. Armed Forces YMCA 17. ACS (Army Community Services) 18. Veterans Administration

Off Post 1. State Attorney General 2. Child Protective Services 3. County Attorney 4. District Attorney 5. Military Related Websites

FAMILY CARE PLAN

Much information is available on the web for service members and their families to assist them in all aspects of military life. Websites with useful information for military families about such things as planning for deployment, personal finance, relocation, counseling and the like include the following: www.military.com/spouse/fs/ and www.militarychild.org. One topic that is frequently mentioned in the discussions of deployment and deployment readiness is the Family Care Plan.

It is suggested that service members have developed family care plans whether or not they expect to be deployed. These plans are intended to address time periods for drills, annual training, mobilization and deployment. A site at military.com benefits has useful suggestions in this regard. See www.miltary.com/benefits/ resources/family-support/family-care . While the military encourages the preparation of a family care plan, there can be some confusion about the non-binding nature of such plans in litigation. The military’s requirement that a service member complete a family care plan is in no way determinative of what a family court will do in any given case. Sometimes the service member and his/her family need to be educated about this and they may act under the false assumption that if a matter is addressed in the military’s family care plan that is sufficient for the court and the court should just accept the plan. This plan may indeed control until such a time as a court is able to rule. Clearly, the plan serves an important function for shorter absences by the service member. But it cannot deprive a court that has jurisdiction over the children from entering appropriate court orders.

Another resource to the service member and family is the FAMILY READINESS GROUP or FRG. This is an officially command-sponsored organization of family members, volunteers, soldiers and civilian employees that belong to a unit. It is designed to assist the unit commander, the soldier and the family members. Each group is designed to promote soldier readiness, and at the same time strengthen families.

CONCLUSION

Each practitioner serving the military client in family law related matters should do so with professionalism, courtesy, efficiency, specialized knowledge, empathy and patience. The effective interview and counseling of military clients include obtaining pertinent and unique facts, giving accurate, authoritative information, knowing the law and applicable regulations; articulating in a balanced manner the positive and negative aspects of the issues and, if necessary, referring the case to someone else capable of handling such matters.

Handouts can save time; answer the frequently asked questions; educate you and the client; cover the bases; reduce mistakes, grievances and misunderstandings.

Additionally, it is recommended that practitioners use email and other forms of electronic communication for updates to clients and for follow ups. Using and knowing about authorized websites as information tools accomplishes the same positive results as stated previously.

Finally, as evidenced by the number of new provisions of family law directed specifically to the military who are in harms way, the Texas legislature is keenly aware that the current state of family law was unmindful of the culture, nuances and unique situations that exist to the servicemembers and their families as a result of serving in a Combat Zone.

Donald L. Williams is an attorneymediator & counselor at law and Visiting Associate Judge of the 171st Judicial District Court in El Paso

Texas Paralegal Journal © Copyright 2010 by the Paralegal Division, State Bar of Texas.

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