One of the biggest reasons people seek out our help in a divorce or custody case is there are children involved. One scenario that we hear frequently is that a parent will go to pick up the children and the other parent will refuse to release the children, then law enforcement is called.
Generally what law enforcement will tell a parent when they are called is that there is nothing they can do without a court order and that the parent should contact a divorce or family law attorney to help them. This is partly because there is nothing telling law enforcement what parent has a superior right to the children at any given time without a court order.
What a divorce or family law attorney will help them establish through a court order is:
- How decisions are going be handled for the children for medical, education, and legal issues, etc.
- A visitation order establishing when each parent is supposed to have the children
- Child Support
- Medical Support
Once there is a visitation order in place, this often alleviates some of the problems. This is because each parent knows what is expected of them—it is in black in white. However, this is not always the case; sometimes it is necessary to enforce the visitation order.
If you are married to the child's other parent, a Texas divorce will establish a visitation order. Alternatively, if you are not married or for whatever reason do not want to file for a divorce, then you can file a Suit Affecting the Parent-Child Relationship and this will establish a custody order that includes visitation.
Once you have a court order that gives you the right to see your children, it is a good idea to start keeping a visitation journal. This is a useful tool should the other parent start making it difficult for you to exercise your visitation.
Having a record will help you when you:
- Attempt to talk to the other parent about any visitation problems
- Try to settle the issues in mediation
- Find it necessary to ask the court to enforce your visitation order
The Visitation Journal should include:
- WHO – was there when you tried to see your children (witnesses). Did you call law enforcement to make a report (what is the report number)?
- WHAT – happened (no one was home, cars in driveway, did anyone answer the door)
- WHERE – the location where you tried to pick up your children
- WHEN – the dates and times you tried to see your children
- WHY – did the other parent give you a reason for not letting you see the children
Keep Visitation Journal Updated
You should update the journal every time you attempt to see your children and are not allowed to see them. Write your journal entry as soon as possible, while the event is fresh in your memory.
Enforcing a court order means that you are asking a judge to make another person follow an order. This can be accomplished in several ways, but it usually involves some sort of punishment.
Visitation enforcement is a legal tool that helps the non-custodial parent when that parent:
- is being denied access to their children
- has a conflict with the co-parent
- has an on-going conflict during exchanges
The most frequent issues that arise with respect to the visitation order that lead to enforcement are:
- Trying to change dates and times of visitation
- One of the parents arrives late on several occasions
- A parent says that visitations are going to stop
- A parent designates another person to handle the pick-up and drop off, often the new lover
- The non-custodial parent is not paying child support and the custodial parent decides because of that they can withhold visitation
- The custodial parent withholds the children because of problems with the other parent’s family or friends
- One of the parents changes address and does not update their information with the other parent or the court
- One of the parents makes changes to the child’s routine or schedule and wants the other parent to follow it such as enrolling them in an activity that interferes with visitation.
Enforcement and Modification Remedies
A parent may seek enforcement of the court order allowing access to the child by filing an enforcement or modification and asking the court to:
- Change the visitation plan
- Increase visitation
- Schedule and enforce additional visits
- Ask for attorney fees
- Hold the primary parent in contempt of court which may include jail time
- Change custody, in extreme cases
Contempt is used to enforce a court’s order after the party has failed to perform an act they were ordered to do.
Civil contempt is the method by which the court seeks to obtain compliance with its order. This empowers the court to:
- Jail the offending party until the party complies with the court’s order
- Impose a fine on the offending party
What Facts and Steps are Needed for an Enforcement Case
If the visitation order provides that the person attempting to exercise their possession of a child is to pick that child up at the other parent's home or other location, to support a finding of contempt, that person must strictly comply with the order and appear at the designated date, time, and place.
It is insufficient that the other spouse has called and informed them that they may not have possession.
In summary, for your visitation attempts to count in an enforcement case in Texas you must:
- physically go to the place where you are supposed to meet or pick up your children listed in the court order
- at the correct time ordered by the court
- knock on the door
- if the other parent will not let you see your children, or the children are not there,
- then there is a violation.
What I like to tell my clients and potential clients is that they must:
- Be at the correct place
- At the correct time
Things that can mess up a visitation enforcement case include:
- Not showing up because the other parent tells you over the telephone you cannot have the children.
- If you do not try to pick up the children at the correct place and time, you have not followed the order so there is nothing to enforce.
What if the Child Refuses to go?
One of the most frequently asked questions in regards to the enforcement of possession and access is the situation where the child refuses to go with the parent attempting to exercise their possession.
We get this from both parents trying to exercise their visitation and from parents wanting to prevent visitation.
This is known as passive contempt. The parent with primary possession of the child will claim to have fulfilled their obligation by:
- having the child ready to go
- the child walks out on the porch
- then the child refuses to go with the parent attempting to exercise their possession.
This situation comes up frequently and appellate courts have taken differing views as to whether the parent with primary possession can be held in contempt when the child refuses to go.
Ex Parte Morgan, 886 S.W.2d 829 (Tex.App.-Amarillo 1994, orig. proceeding)
The Amarillo court indicates that there is no such thing as passive contempt. If a parent has the children ready to go and they refuse to go, the custodial parent could not be held in contempt.
Ex Parte Rosser, 899 S.W.2d 382 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding)
However, the Houston court of appeals came down on the issue differently. In “Ex Parte Rosser,” the custodial parent had the obligation to:
- effectively drag the kid to the visiting parent's car, kicking and screaming, or
- go directly to jail, unless that parent can affirmatively show "an involuntary ability to compel the visitation."
Helpful documents and actions you can take for your enforcement case include:
- A copy of all court orders having to do with your case
- Send notice to the other parent (a letter) stating that you will exercise your visitation as it is ordered going forward and you will be at the correct place and time to exercise your visitation.
- Arrive at least 15 minutes early at the visitation place
- wait for around 15 minutes past the designated time if the other parent is late
- Call the police and make a report if no visitation occurs.
- Get a copy of the report number from the police
- Make three reports in a row with the police
- After three reports, hire an attorney to file a visitation enforcement case on your behalf.
One of the suggestions I make to clients and potential clients is that perhaps they should start their visitation enforcement case by first sending a demand letter to the other parent. My experience is that is can sometimes be the quickest and easiest way to getting visitation going again.
This letter can either be written by the parent or an attorney representing the parent. Typically, the letter will:
- Inform the parent denying visitation of the denied parent’s intent to see the children as ordered in the visitation order
- Address the parent’s plan to be at the pickup location at the time listed in the order
- State the children should be ready for visitation as provided in the order and that the children will be returned as required in the order
- Describe the parent’s plan to continue visitation going forward as ordered for now on.
- Inform the other parent that if the visitation is interfered with, it will be necessary to seek court intervention by filing an enforcement and asking the parent denying the visitation be held in contempt, pay court cost, penalties, and attorney fees for violating the court order.
Witnesses Can be Helpful
Witnesses can be helpful if your case goes to court. If you bring someone with you during the pick-up of your children:
- They will be available to testify in court if necessary
- They can prevent your ex from making anything up about you. I have had cases where this has been a concern.
Document your witnesses:
- Phone number and
- Dates when they were present that you tried to exercise visitation
It would be a good idea, if possible, to use someone other than your boyfriend or girlfriend. The less connected the witnesses to you or your ex, the more credible they will appear in court.
Obtain Evidence - Make a Purchase from a Store Nearby
Instead of calling the police, you can also make a purchase from a store nearby and keep the receipt to show the time and date you were in the area. Keep this receipt and attach it to your visitation journal.
I tell my clients and potential clients that having a record of at least three denials within a brief time span is helpful when trying to enforce their rights in court.
Visitation Exchange Tips
Some rules to keep in mind when you are exchanging your children with the other parent. Do not:
- discuss conflict
- send someone else to pick up the children without telling the other parent ahead of time
- bring your new girlfriend or boyfriend, (there is a good chance this will likely upset the other parent). This one of the biggest reasons I see former clients of mine come back for round two.
- use the kids as messengers to pass information to the other parent
- yell, scream, or get angry if your visitation is denied. Remain calm and document the denial in your visitation journal.
- pump the kids for information about what happened when they were with the other parent.
If there is a chance your ex might make something up about you such as being physically violent, it is probably a good idea to bring a witness.
When in Doubt, Follow the Order
If a parent does not follow the order, ultimately, they may be held in contempt. It is not uncommon for a parent to schedule things such as doctors’ appointments or activities like baseball or scouts that interfere with visitation.
One parent does not like the child’s activities because it is interfering with their visitation. These scheduled activities are not a reason for skipping a parent’s visitation. A judge may order someone in contempt for not following the order.
Help Understanding the Order
If you need help understanding your court order, an attorney can explain it to you. The Law Office of Bryan Fagan, PLLC will be happy to offer you a free consultation to answer your questions regarding the order and discuss enforcing visitation if that is needed.
Hire an Attorney and File a Motion to Enforce the Court Order
If the demand letter and showing up at the other parent’s residence does not remedy the situation, then you will need to hire an attorney to help you with enforcing the order. This will involve:
Filing a Motion to Enforce with the Court
This motion will tell the court:
- The parties to the case
- The child involved
- What order you are asking the court to enforce
- The violations of the order
- What remedy you are seeking such as jail time, makeup time, and attorney fees
Setting a Hearing
Once the paperwork if filed, you or your attorney will need to get a court date for the hearing. This can be accomplished by calling the court and getting a date.
Serving the Other Parent with the Paperwork
You must give the other parent legal notice, which includes:
- Copy of the paperwork you filed
- When the hearing date of the case is
Once the parent is served with this information, the citation showing the party was served will need to be filed with the court at least 10 days prior to having the hearing.
Preparing for the Hearing
You and your attorney will want to:
- Talk with any witnesses
- Review and prepare the questions that will be asked in court
- Review the documentation that shows the judge your visitation has been denied
- Go over any local rules for your county
- Review the paperwork to make sure it is correct
In general, your attorney may ask you questions such as:
- What is your name?
- Where are you living?
- You are the parent of______________
- The court gave you visitation in the following order______________
- This order was signed on ___________________
- Were you awarded the following possession schedule_____________
- Is it your understanding that it is on the 1st, 3rd, 5th weekends beginning at 6 P.M. on Friday and ending at 6 P.M. on Sunday?
- Did you and the Respondent ever legally change the court-ordered visitation schedule?
- Have you tried to exercise your court-ordered visitation on a regular basis since the court order was signed?
- Have you been receiving your visitation as ordered?
- Has the custodial parent ever voluntarily given you more access with your children?
- Has the custodial parent notified you of a change of address?
- Are they living at the address listed in the court order?
- Are you asking the court to hold the other parent in contempt for failing to notify of you address changes on the following dates?
- Did you notify the other parent in writing that you intended to exercise your visitation according to your court order?
On the day of the court hearing, you should:
- Arrive early
- Go to the courtroom
- Sit down and wait for the judge to call your case
- You and the other parent will be sworn in
- Your attorney will be told to proceed
- Your attorney will ask you and the other parent questions
- Then the other parent will have their chance to testify or present evidence
- After the judge has finished hearing testimony and reviewing the paperwork, they will make a decision.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
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Law Office of Bryan Fagan, PLLC | Tomball, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Tomball, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Tomball TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Tomball, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.