One of the most frustrating situations that a parent can find themselves in is to anticipate a period of visitation with their child only to find out that their child will not follow through with the court-ordered visitation. If this is happening to you and your co-parent, your mind may immediately start to wonder if potential violations of a court order are ongoing. You are under the impression that the court-ordered visitation provided in your child custody documents guaranteed you certain periods of possession of your child. Now that your child is the one refusing to come visit you it is natural to wonder whether your co-parent can be held responsible for this.
In today’s blog post from the Law Office of Bryan Fagan, we are going to walk through this situation in detail. We are going to talk about what the law there’s traditionally held in Texas in terms of what responsibility your co-parent would have to ensure that court-ordered visitation occurs without a hitch. Next, we will get into a recent update to the law in Texas when it comes to a child refusing to attend court-ordered visitation with a parent. Finally, we will walk through some tips and steps that you may wish to follow if you are interested in being able to have more meaningful visitation opportunities with your child.
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about what changes in the law have occurred that may impact your life and that of your family.
What is contempt of court?
When a party to a lawsuit disobeys or disrespects a court by acting in opposition to a court order that is generally thought of as contempt of court. The law acknowledges that there are two different types of contempt, direct contempt, and constructive contempt. Direct contempt occurs when you are within the presence of the court. This would be a violation of a court order or disobedience to the court while inside the courtroom itself. On the other hand, constructive contempt is any type of contempt or disobedience that occurs outside the court’s presence.
Potential violations of a visitation order in a family law case constitute constructive contempt. If you wanted to file an enforcement lawsuit against your co-parent saying that he or she engaged in constructive contempt of a court order the court would need to be able to find that three conditions were in place. First, the court needs your prior court order to be reasonably specific period this means that the court order must lay out in reasonably specific detail the expectations for visitation. In other words, it must not be the situation that your court order was so vague and nonspecific as to be impossible to follow by your co-parent. This is why when you are drafting your child custody orders it is so important that you have an experienced family law attorney to assist you in doing so. The last thing you want to do is find yourself in a position where you have worked hard to mediate your case and arrive at agreeable child custody orders only to find that the orders themselves were worded so poorly that they are unenforceable by a future court.
Next, a violation of the court order needs to have happened. Evidence needs to be produced that a violation of a court order has occurred. This can be done in multiple ways depending upon the circumstances of your case. In a situation like one where your child has allegedly refused to engage in visitation with you, what you can do is take out your phone and record the alleged incident with some proof of the date, time, and location for a court to review in the future. Or, if your pickup and drop off location is a public place you can always try and make a small purchase at a restaurant or store nearby to be able to establish that you were in the correct place at the correct time and we’re ready to execute the visitation exchange but was unable to do so.
Third, there must have been a willful intent to violate that court order. This means that your co-parent must not have accidentally or through a series of bad circumstances aligning themselves violated the court order. Rather, it must be shown that your co-parent set out to violate the court order and was successful in doing so. As in criminal law, intent can be difficult to prove. Again, working with an experienced family law attorney who has walked with clients through enforcement cases like this before is incredibly important period the last thing you want to do is find yourself in a position where you can prove the first two elements in an enforcement case but are unable to prove the third.
When do the preferences of a child matter when it comes to possession?
When it comes to contempt findings, the desire of your child does not override a court order. It has been held in Texas for many years that there are no court cases that take consideration of a child’s desire to the extreme of granting that a child, no matter their age and maturity, can have complete discretion over periods of possession by a parent. What we mean by this is that even if your child is extremely mature, a teenager, or has good judgment, his or her positions on this subject are not more important than the court order that grants you or any other parent possession of their child.
This relates to a common question that the attorneys with the Law Office of Bryan Fagan are asked on a somewhat frequent basis. That question relates to when a child can voice their desires when it comes to possession or any other subject in a child custody case. The answer is that a child needs to be at least 12 years old before that child’s preference, if any regarding primary conservatorship and where their primary residence will be becomes a relevant factor for a court to consider. There are no court orders and there is no legal authority through prior court cases that allow your child or any other to have the final say on visitation or possession.
How do the family courts view surrendering or making your child available for visitation?
In a recent court case, a mother was accused by a father of failing to make the child available for visitation. She contended that she did surrender the children when she left her sons outside at the time and location for pickup by their father. She further argues that this is sufficient action in terms of complying with the possession and access order established by a court previously. There is case law that supports the idea that leaving the children outside the house allows the children to become subject to the authority and possession of the visiting parent.
However, the Fort Worth Court of Appeals found out that what the mother did in this recent case fell short of surrendering the children. What ended up happening in this situation was that the mother allowed the children to remain in her house. This was far from yielding power over the children to another person. This was not a situation where the father customarily would ever enter the home of the mother. Therefore, even though in her mind she had perhaps surrendered the children to the father the father had no more control over the children at that moment than he had at any other moment earlier that week.
The issue that the father in this case had was that he was not able to get his sons into his vehicle. Reasonably speaking there is only so much a parent can do to physically place children into a vehicle. Hypothetically speaking, the mother could not leave her children at the curb for the father and then say that’s all that she had to do. Not only would this not be practical or ethical for a parent it also would not satisfy the court order which requires her to surrender the children to the father. She did not do this and as a result did violate her court order, the Fort Worth appeals court determined.
What do the kids’ wishes have to do with the situation?
The mother in this case further attempted to defend herself by saying that the children did not want to go with the father and therefore she failed to comply with the possession order because her noncompliance was involuntary. Courts generally hold that an involuntary inability to comply with a court order is a valid defense in criminal contempt situations. The reason for this is that if an action was involuntary, it could not have been willful and willfulness is a component to contempt.
However, the family court in this case determined that the mother had the burden of proof as far as showing her inability to comply with the court order. That must have been crystal clear to a court that the mother’s noncompliance was involuntary. She further went on to say that she encouraged her boys to go with the father even though they were not interested. Again, the court states that regardless of what the mother told the father or her boys, she gave her boys the option of being able to stay with her. As you have probably heard many times in your life, actions speak louder than words. In this case, the mother’s actions communicated that the children did not have to go with the father if they did not want to.
What has historically been the way that family courts treat this issue?
In this case, a decision was written in 2022 so it is recent. Two court holdings from Texas appellate courts which our older but had been the tried-and-true cases for precedent are known as Ex Parte Morgan and Ex Parte Rosser. In ex parte Morgan, an Amarillo appellate court stated that there is no such thing as passive content. Rather, if the parent with primary conservatorship rights had the children ready and the children refused to go on visitation with you as the non-primary parent, your co-parent could not be held in contempt of court for this.
On the other hand, in Ex Parte Rosser, a Houston appellate court decided differently. This court determined that a custodial parent must essentially force the child into the non-primary parent’s vehicle despite whatever protests may be coming from that child. The alternative is for the parent with primary conservatorship rights to be found in contempt of court for having violated a court order. The exception to this contempt finding would be if that parent was able to show that there was an inability to force the visitation to occur which was involuntary. That parent has a high burden to show that he or she could not compel visitation for reasons beyond their control.
How to approach this situation as a parent
No matter what side of the issue you are on as a parent you need to think about whether your behavior is impacting your child negatively. Children can sense how you as a parent are approaching the subject. If your child believes that by showing a willingness to spend time with the other parent he or she is being disloyal to you then that is a problem. You are taking an already difficult situation and possibly making it worse. Your child may be reacting to you and your attitude towards the situation.
You may be alienating your child from your co-parent and do not even realize it at this moment. When you say bad things about the child’s other parent in front of him or her you are tacitly acknowledging that it is OK for your child to do so. Children are like sponges and they soak up what is going on around them. You may be saying things about your co-parent that you brush off as being unimportant but your child has no way of acknowledging this. The more negative you are regarding your co-parent the more your child is apt to take on those same beliefs. So, be careful about what you are saying about your co-parent in front of your child.
When your children are getting ready to go see your co-parent what is your body language like? Are you neutral towards the situation and helpful to your children when they are trying to get ready? Or are you clear through your body language that you are not happy with your children and are certainly not going to support them in getting ready to go to your co-parent’s home? The choice is up to you. Even if you were not happy about how your divorce or child custody case turned out that does not mean that you have no control over how you act. Adults do what is right, not what feels good in the moment.
After your children come home from a period of visitation with your co-parent do you ask them questions about if they enjoyed their trip and the types of activities they did? Or do you ask them pointed questions about their other parent to try and find ammunition to use against him or her in a future court battle? When you lose sight of the immediate needs of your child and are instead laser-focused on trying to identify ways that you can gain an advantage over your co-parent in the long run you are doing your child a disservice. The more focused you can be on the needs of your child in the current circumstances the less likely you are to be in a situation where you are violating your court orders.
In any event, you need to identify the reasons why your child is unwilling to spend time with your co-parent. This cannot be an ongoing issue because surely it is something where your co-parent is going to attempt to bring you back to court to determine why your child is unwilling to spend time with him or her. Doing so will help you avoid a situation where you are running afoul of any court orders.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody lawsuit.