Ask A Divorce Lawyer: Can she prevent me from taking my son with me while back from deployment?

Question: 

My wife and I have been married for four years and we have a 3-year-old son. I’ve been on active duty the entire time and have spent the majority of that time deployed to Iraq. We have both agreed to get a divorce, but no paperwork has been filed as yet since I’m currently overseas. My mid-tour leave is coming up in February and my wife has just told me that I won’t be allowed to see my son when I return unless she is there with him. This leave will be the only two weeks for the next year in which I will be home.

Can she prevent me from taking my son with me while I’m home in the U.S.? And if she cannot, what can I do to enforce this? She has no justification to do this. It seems she’s only using our son to get me to spend time with her as well.

 

 

 

Answer:

First, thank you for your service to your country!

Second, you need to contact a domestic litigation attorney RIGHT AWAY.  Although I do not practice in Texas, Cordell & Cordell has many attorneys licensed and located in Texas who would be happy to help.  He or she will discuss your options with you to determine how you should proceed.  We also understand that since you are overseas this may be a bit difficult.

Right now, you and your wife have equal rights to your son.  Most states have statutes which prohibit one parent from interfering with the parental rights of the other.  The problem is you may not want to wait until your leave to take action as it could take weeks to get a Court Order requiring her to produce your son for visitation.  Your return home is probably going to be emotional enough; no need to add on additional stress.  If you determine that you want to file for divorce, you could obtain Temporary Orders from the Court which would detail a visitation schedule during your leave.  Some states allow you to file for Temporary Orders even if you have not filed for divorce.  The Temporary Orders will likely address more than custody and placement, the Court may also order support, exclusive use of the marital residence, or responsibilities for payment of debts as well. An attorney licensed in Texas would definitely be able to explore your options with you.

You can initiate an action for divorce even if you are overseas.  However, if she initiates an action, you may be able to apply for a suspension of the proceedings under the Service Members Civil Relief Act.  The SCRA was enacted in 2003 to enable service members to devote their entire energy to the defense needs of the Nation and provides for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of the service member during their military service.  The statutes define who qualifies for the Act’s protection and when he or she can obtain a stay of the proceedings for at least 90 days.

In addition to speaking to a domestic litigation attorney licensed in Texas to ensure visitation of your son over leave, a military legal assistance attorney may be available to you to address specific questions you may have regarding the SCRA.

 

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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