When you finish a family law case it can feel like the weight of the world has been lifted off your shoulders. Whether you are dealing with a child custody or divorce situation there are undoubtedly more than a handful of times during that case where you felt like every move you made was being scrutinized. For better or worse when your case comes to an end you can take a long exhale and feel like something good has been done. Even if the only good done in the case was to come to an end. Now, at least, you can move on to the next phase of your life.
What many people do not realize at that moment is that your chances of finding yourself right back in the same position where you started are not that remote. People who go through difficult family law cases often find themselves back in that same courtroom a year, two years, or a handful of years later. A leading cause of families needing to return to court relates to enforcement lawsuits. Even when well-meaning parents like yourself have the best of intentions upon closing out a child custody case, it is no sure thing that you won’t need to make use of the courts at some point in the future if you and your co-parent cannot honor the court orders that you worked so hard to obtain.
In today's blog post from the Law Office of Bryan Fagan, we are going to walk you through what it means to file an enforcement case. Additionally, we will put the shoe on the other foot and talk about how you can defend yourself from an enforcement case that has been filed against your will and seemingly against the evidence available to you and your co-parent. All the while, we will be providing you with this information from a group of attorneys who have been able to serve their community and have a front-row seat to a wide variety of child custody enforcement cases across the State of Texas.
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations can help you to learn more about the world of Texas family law as well as what it means to be able to obtain child custody orders and ultimately pursue an enforcement lawsuit, if necessary.
What we want to be sure of after consultation is that you as a neighbor of ours have learned something, received feedback on your questions, and have left knowing that the attorney you met with was paying close attention to your problems. We believe that if you feel this way about our office at that point you will feel confident about hiring us to represent you in your child custody, divorce, or other type of family law matter.
What to do when a violation of your court order has occurred
So here you find yourself trying to get along in life, raise your child and stay out of your co-parent's way. You remember the lessons on co-parenting that you watched after your divorce, but those lessons have been difficult to implement. However, you and your co-parent have generally attempted to remain civil with one another. Most importantly this means that the two of you have at least tried to get along with each other and coordinate your parenting efforts. This seemed to work well until you recently started to run into some difficulties associated with raising your child together and honoring your visitation and possession orders from the divorce.
Seems as though your ex-spouse believes that he is now entitled to picking the kids up late on Friday afternoons for weekend visitation and then dropping them off late on Sunday to give himself more time. He has done this without so much as a peep from you because you figured that it wouldn’t last for that long and it was better to let sleeping dogs lie. This wasn’t the hill that you were willing to die on, in other words. While you were looking the other way, your co-parent decided to make this the “new normal” schedule for weekend visitation purposes.
Now you are left with having to decide on it. Fortunately, you have some options to consider. I always like options when I have a decision to make because options make us think through the issue a little deeper. Options also make us less desperate to find an agreeable outcome. When you have to eat something and there’s one option in the house, you'll take it because you're desperate. Hunger leads us to eat something not that tasty. However, if you had just gone to the store the prior day you would have options and therefore would be less desperate and could choose the best of those options presented to you.
The same applies in a family law case with obviously higher stakes. One option you have when your ex-spouse is violating the possession and visitation portions of your order is to reach out to him to see what is going on. Communication is key when you are co-parenting. You and your ex-spouse do not live in the same home anymore. Communication was likely difficult while you were living together, and it is even more difficult now that the two of you no longer live under the same roof. It would make sense, therefore, for you to reach out to him to see what is going on and why he’s been taking advantage of the order to the extent that he has.
Believe it or not, when parents violate custody orders often it is done not out of malice or purposeful bad behavior but because of a misunderstanding. I had a family law case a few years ago where the dad of a high school senior stopped paying child support. His ex-wife hired our office to pursue child support enforcement on her behalf. I ended up calling the attorney that the dad had hired to represent him to discuss the situation. What ended up happening was that Dad misunderstood the child support order. He thought that once his daughter turned 18 years old that he no longer had to pay child support. In actuality, the orders stated that child support no longer had to be paid once the child turned 18 or graduated from high school, whichever occurred later.
So, we had a legitimate misunderstanding of the order on our hands. We were able to negotiate a payment plan with Dad to have him pay Mom all the owed child support over time. While it seems like this could have been a situation where dad simply did not want to pay child supports any longer, what it turned out to be was a situation where dad either did not understand the child support orders or simply had read them once and did not take into account the meaning of the orders. Either way, it was an issue that we sorted out rather quickly and avoided having to go to court for an actual enforcement hearing.
What you may also find from talking to your ex-spouse in your situation is that he has a legitimate excuse as to why he was picking the kids up and dropping them off early or late. For example, people's work schedules or responsibilities change from time to time, and he may find himself in a position where he is not able to leave work right at 5:00 on Fridays when he has possession of the kids. As a result, he gets to your home late to pick them up. Dropping them off later may be a function of another legitimate issue that tends to come up on Sunday afternoons.
These are issues that you only knew about because you reached out to your co-parent to discuss them. True, your ex-spouse could have made the initial gesture to try to speak to you but remember that communication may not be a strength of your co-parent. This can be frustrating, but the reality is that to avoid the time and cost of an enforcement case you may need to make the gestures and generally be the one to initiate communication between the two of you. Hopefully, by doing this you can avoid going to court in the first place. An ounce of prevention is worth a pound of cure, as the old saying goes. Do not underestimate how receptive your co-parent could be to a simple phone call or face-to-face chat. At the same time, do not overestimate the degree to which your co-parent is violating your court order on purpose versus having a legitimate excuse or not understanding the order.
Seeking mediation first before going to court
Speaking of knowing and understanding your court orders, be sure to look through them one more time before filing an enforcement case. There may be a clause contained in those records which requires you to schedule mediation before a family law enforcement case. This clause serves two purposes, among others. The first is that it goes back to our earlier point about communication being important for parents in different households. Mediation allows the two of you to put your differences on the table in front of you to see if you can negotiate your way through the problems. By this time, you would have both hired an attorney and are being guided by him or her at mediation.
The mediator is a neutral, third-party individual who is usually a practicing family law attorney. You and your ex-spouse would be able to select a mediator as a mutual agreement. Once you are at mediation you would try to see if there is any way to avoid a trial or about enforcing the possession and visitation portions of your court order. For example, you may have a plan to make up the hours of possession time with your children. You can negotiate that plan in mediation. There may be other issues in play like child support owed, attorney's fees for your current case, and things of this nature which can also be discussed in mediation.
After mediation, the mediator will draft what is known as a Mediated Settlement Agreement (MSA). The MSA will contain all settlement agreements that the two of you reached during the mediation session. That MSA would be sent to the court as evidence of your attempt to mediation our case. If any outstanding issues were not successfully negotiated upon then those are what you would head to the courthouse on to discuss with the judge. However, hopefully, the two of you were able to successfully negotiate all the issues which you wanted to cover.
Filing a motion to enforce your custody order
If all else fails, you have the option to file a motion to enforce the custody orders relating to your child. These custody orders need to be reviewed in painstaking detail while you prepare for a trial before the judge. Once you have filed the case the next step in the process is to continue to try and negotiate with your co-parent. You never know if you can make some progress on this issue during informal settlement negotiations. At the same time, you should start to collect evidence that can substantiate the allegations made in your motion to enforce. The better equipped and organized you can be with your evidence the more likely you are to win on your motion for enforcement.
The motion to enforce will first need to be served upon your co-parent. This means hiring a private process server, constable, or sheriff to go to the courthouse, pick up the documents that you filed and then physically hand them to your co-parent. There are alternative methods of service that can be employed but you first must try to serve your co-parent personally. Once he or she has notice of the lawsuit having been filed then the ball is in their court. He or she would have around 20 days to file an Answer to your petition. Once the Answer is filed you can begin the negotiation process.
An enforcement petition is a very particular legal document. If you think back to your divorce, you may recall that the divorce petition is an extremely general document in most cases. However, in an enforcement petition, you are going to be asked to fill out the specifics of each violation of your court order. The date on which the violation occurred, the type of violation, and other details are just the starting point. This can be a lot for someone to keep track of. It is recommended that you maintain a journal of all these violations so that you can refer to them when you are drafting your petition. The more detailed and specific you can be the better chance you have of winning your enforcement case.
Defending yourself in an enforcement lawsuit
When the shoe is on the other foot, and you need to defend yourself from an enforcement lawsuit you also need to be very well organized and have your evidence ready to present to a court. Look to the court orders themselves when you need to defend yourself in a custody enforcement lawsuit. For instance, if the court orders were not well drafted or are not clear then you cannot be expected to follow them. Sometimes the orders do not spell out your obligations when it comes to picking up or dropping off the kids. They may be so convoluted that the court cannot hold you responsible for any violation.
Next, let's say that your co-parent is alleging that you have not shown up to pick up the kids for the past few Fridays. Your position is that you were present, the issue is that your co-parent refused to make the children available for their visit. In this situation, you should continue to make yourself available for the children. For instance, even if you know that your co-parent is going to deny you time with the kids you still need to drive out to her home. Stop by a fast-food restaurant to purchase something small in the drive-thru- even if you are not hungry. The point is that you need the receipt to show that you were in the area and ready to pick the kids up but were not able to because your co-parent was withholding possession. In doing this you may also be able to position yourself to file a counterpetition for enforcement if you believe that your co-parent is the one who is violating the court orders.
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