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Picture this. You are a divorced dad who has every other weekend visitation with your children. Having your children over to your house for visitation is the highlight of your week, even in Texas, where refusal to follow the schedule can be challenging. Throughout the week the house is empty with just you and your dog there. However, the weekends when your children are with you are fun, lively times. They remind you of how things were before the divorce. Weekends are times when you and your children spend time together, play games, go to church, and do all sorts of activities.
Visitation periods on the weekends start at 6 pm on Friday. You always leave work right on time to be at your ex-wife’s house on schedule. To that point, you have never been late to pick up the kids for weekend visitation. This is something that you take a great deal of pride in. It’s not like your ex-wife has had the kids ready on time each weekend. However, you want to honor your divorce agreement and do what is best for your children.
This weekend, however, your kids are noticeably late. It’s getting past 6:00 now and is closer to 6:30. Text messages to your ex-wife are not being returned. You see her car in the driveway, so you know she and the kids are there. You decide to walk up to the door and knock. Patiently you wait until your ex-wife appears in the doorway. You look around but don’t see your kids. What’s going on?
How do you respond to a visitation refusal?
When your ex-wife comes to the door, she tells you that the kids are not going with you this weekend. Of course, this frustrates you a great deal. Your next question is why the kids are not being released for their weekend period of possession with you. Not only is this frustrating because you are here like always but because this violates your court orders. You have the right to spend every other weekend with the kids. It’s plain as day in the Final Decree of Divorce.
Your ex-wife agrees that this is your weekend for possession but is also keen on telling you that the kids still won’t be able to come with you. You ask the see the kids, but she refuses your request. When you ask her why the kids won’t be coming with you, she says that she thinks the kids need more time at home with her. They’ve had long weeks at school, and she wants them to rest for the weekend. This strikes you as odd. You know their school schedules and what each week holds for the kids.
At this point, you are irate but are doing your best to keep your cool. Your ex-wife is refusing to allow the kids to come and visit with you. Rather than make a scene and risk doing something that you regret you decide to leave. Empty-handed and without the kids you make your way home. All the emotions that any of us would experience at this time are starting to well up inside you. Your main concern is that this posture of denying you visitation in Texas may become a regular event now, leading to frequent refusal.
When visitation is refused make sure to follow through on your end
Suppose that instead of going to your ex-wife’s house and having visitation refused you instead had visitation refused in advance. As in, your ex-wife sent you a text message earlier on Friday telling you that the kids would need to stay home that weekend. What if you decided that this was not acceptable but that you would not go to her house that evening? After all, she lives quite a ways away from your work. Why bother going there if you know that she is going to deny you visitation?
If this happens to you it is crucial that you still show up on time to pick up the kids. A true visitation refusal in Texas cannot happen unless the parent whose visitation is refused comes away empty-handed. It is not enough to rely upon the assurance of your ex-wife and not arrive at her home at 6 p.m. Instead, you need to show up and be refused visitation.
Why is it so important that you show up at your ex-wife’s home and be denied visitation that way? If you decide to hold your co-parent responsible for the visitation denial in Texas, one essential piece of evidence is that a refusal occurred. Technically, under the letter of the law, you would be violating the court order by not showing up at her house at 6 p.m. Thus, you would harm your case by not arriving there on time.
Meeting with an attorney if the visitation refusals become habitual
For a parent like yourself in Texas, a common concern is that visitation refusal becomes something of a habit on the part of your co-parent. It may be that your ex-wife did have a legitimate concern about the well-being of your children on that weekend. Sure, she could have communicated her concern to you earlier in the week. However, your ex-wife has never been a great communicator.
That said, you both have always made an effort to communicate together when it came to your children. You even created a way to mesh your calendars online so that both of you could see what work events and other conflicts the other person would have upcoming. This made it much easier for the two of you to coordinate your schedules to best care for your children.
You thought that this was always going to be the case when it came to your children. However, it is abundantly clear that this was not always going to be true. Your ex-wife took it upon herself to abuse the level of trust that you had in one another. Now you are staring a blatant violation of your court orders right in the face. With that said, you decide to schedule a meeting with the Law Office of Bryan Fagan to discuss your options.
What to do when a violation of your court order occurs
Ultimately, what you may need to pursue is an enforcement case against your ex-wife. As you may expect, an enforcement case involves attempting to enforce the terms of your court orders. In your case, the court orders are your Final Decree of Divorce. Contained within those orders is a detailed possession schedule which you and your ex-wife agreed to. Those are the orders that determine who sees your children and when. Each day of the year is covered by the possession schedule.
You must have unambiguous court orders. The more clearly written and easy to understand your court orders are the more likely you are to be able to enforce those court orders. Poorly written court orders happen all the time. Even if you have an attorney representing you it is crucial that you pay attention to how your orders are drafted. If they are drafted poorly then you may be in a position where you cannot hold your ex-spouse accountable for violations in the future.
An attorney from our office may look at your court orders with you at the initial consultation. This is to make sure that a violation has occurred. Sometimes people get confused about one aspect of the court orders. Our attorneys will take the time with you to go over your court orders to help you better understand what your responsibilities are and what your co-parent’s are, as well.
Action to take- sending a letter to your co-parent
Contrary to what many people think, attorneys are not licking their chops at the first opportunity to go to court. Rather, a family law attorney with the Law Office of Bryan Fagan will work with you to see if options exist outside of court to remedy your situation.
For example, a letter written by your attorney to your ex-spouse is a good way to introduce the subject to your co-parent. She may understand the gravity of the situation. Many good-natured parents simply do not think about anything beyond their child’s circumstances. As a result, your co-parent may have simply neglected to think about how this is a violation of your court orders.
A firmly written letter addressed to your co-parent pointing out the nature of their violations is a good start to your case. This way there are no doubts about the situation. After the letter, your attorney would ask your co-parent to remedy the situation. This may be through make-up time. Or it may be because of a separate agreement that you all created. Whatever the situation is you and your co-parent are better able to create outcomes together than a court.
It is better to negotiate than litigate
Negotiating your case with your co-parent is a better situation to be in than having to rely upon a court. The first reason for this is that you and your co-parent have a better basis of knowledge regarding your case than does a judge. This is true even after a lengthy enforcement hearing. Judges tend to make decisions based on limited information. As a result, they are conservative in their decision-making. A more fine-tuned argument can be presented by you and your co-parent.
Use this opportunity to discuss all issues regarding your family
Talking to your co-parent about the situation involving your children is the beginning of this discussion. Being able to understand what your children are facing is key. We know that families who face unique circumstances need to consider those in child support. For example, if your child suffers from a disability then he or she may need a different amount of child support than a child without a disability. This could reflect costs associated with medical care, day-to-day costs, etc.
The point is- working with your co-parent on this subject means finding a middle ground on subjects related to your children. Families who can work together not only find a more pleasant experience with their case but also tend to do better with the interests of their children. Do not lose sight that you are doing all this for the well-being of your children. Their best interests are at stake in the case. The more in tune you are with their needs the better the outcomes that will be achieved.
If your co-parent does not negotiate with you
Once you have attempted to work out an agreement with your co-parent regarding visitation in Texas, you can feel confident that you have tried to meet him or her in the middle, even if there is continued refusal. It is not always going to be possible to negotiate a settlement beforehand with your co-parent. He or she may be convinced that they were acting in the best interests of the children. In that case, you and your attorney will need to take an alternative approach to solving the problem.
The legal recourse to pursue in this situation is known as an enforcement case. You are trying to enforce the terms of your child custody orders. Step one is to make sure that you understand the orders very well. You would not be the first person to not have read the court orders and to pursue an enforcement action by mistake. By the same token, parents will sometimes violate court orders inadvertently due to not reading their court orders well enough.
Once you know that a violation has occurred it is prudent to decide if there have been enough violations to merit an enforcement case being filed. One violation may not be enough for you to file an enforcement action. It may be that you need to wait and see if additional violations occur. The more evidence you have of the violations the more likely you are to be successful in court.
Final thoughts on wrongful denial of visitation
When you experience the wrongful refusal of visitation time in Texas, it can feel extremely frustrating. However, once you determine that the violation has occurred it is time to do something about it. First, read through your court orders. Make sure that you understand them very well. Are you sure that a violation has occurred? Talk to your co-parent about what has happened. Make sure that he or she understands what has happened from your vantage point. Be clear about your expectations that it should not happen again.
Then, consider working with an experienced family law attorney. An attorney can help you to plan out the next best decision for your case. It may involve drafting a letter to be mailed to your co-parent. This letter can inform your co-parent of the violations and request that negotiations occur on how to address the problems directly. If your co-parent does not respond favorably to these methods it is time to try another route.
Filing an enforcement case is a complicated matter. Having the assistance of an experienced family law attorney is important in this regard. Thank you for spending part of your day here on the blog for the Law Office of Bryan Fagan. Our licensed family law attorneys post unique and informative content about Texas family law each day.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
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 are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
