If I entered the military, would I lose custodial rights to my child?

Question:

I am a single dad that lives in Colorado with joint custody of my son. I am considering enlisting in the military to help get my life back on track and eventually provide my child with a better life.

If I entered the military, would I lose custodial rights to my child? Could I put language in the divorce decree that explains I am doing this solely for the long-term well-being of my son?

Answer:

I do not practice in Colorado, and therefore I cannot inform you as to the specific laws of Colorado. Cordell & Cordell has divorce lawyers in Colorado who would be happy to set up a consultation.

While it is true that enlisting in the military can have a significant temporary effect on the amount of visitation you are able to exercise with your son, it does not necessarily mean that you need to give up any permanent custodial rights.

In Texas, where I practice, parents sometimes enter into an agreement, with or without the aid of the court, to temporarily modify the visitation schedule while the other parent attends basic training or is stationed overseas. The order can be drafted so that the parties return to their permanent schedule once the party returns to the state.

Some courts will even order that grandparents be able to exercise their son’s or daughter’s visitation rights while the party enlisted in the military is out of state. This might be something you should ask the court to consider.

What kind of order and temporary visitation schedule you enter into will be greatly affected by which branch of the military you enter into, how long your training will be, and what base you will be assigned to once training is over.

It sounds as though you have a close relationship with your son, so I would strongly urge you to speak with the various branches of the military, including the National Guard and reserve units, to see if you can arrange a contract, which will ensure that you will be assigned to a base in or around Colorado. People are often surprised about what can be negotiated in active duty enlistment contracts. This way, you can exercise more frequent visitation.

Of course, you cannot be guaranteed that you will not be deployed overseas, but at least you can have some assurance of returning to a base in or near Colorado once your tour is over and spending more time with your son. Even if you are stationed out of state but within the U.S., you should be able to maintain a minimum visitation schedule.

Whatever you do, do not think that you have to completely give over your custodial and visitation rights in order to enter the military. Several states have passed legislation over the last ten years to protect the rights of military parents while they are stationed out of state or overseas. You should consult with an attorney licensed in your state to see if your state offers such a protection.

As far as the final order changing the custody and visitation schedule is concerned, if you are able to come to an agreed final order with your ex, you should be able to insert the language regarding your reason for entering the military into the order.

If you end up going to the judge for a decision, the judge will draft the order, and whether or not the judge includes your reason for entering the military into the order is his or her decision. The best place to list your reason for requesting a change in the visitation schedule is in the pleading (or paperwork you file to the court asking for the change) itself.

 

Rachel A. Brucks is a Staff Attorney in the Fort Worth, Texas office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Brucks is licensed in the state of Texas. Ms. Brucks received her Bachelors degrees in English and Political Science from the University of Texas at Arlington. She received her Masters in Literature and Gender Studies from Texas State University, San Marcos; and received her Juris Doctor from Southern Methodists University, Dallas.