The result of either of those situations is that a Final Order of some sort was signed off on by you, the opposing party and the judge. That order now stands as the ground-rules for governing the relationship between you and your child whether you like it or not.
In some instances people don’t like what the order says in many regards and decide that not abiding by its terms will be an alright thing to do. If you find yourself in a situation where your ex-spouse or child’s other parent has violated the court’s order then you have the ability to hold them responsible, potentially, for their actions.
I say potentially because, as I often remind clients, you cannot simply contact the police or constable and inform them of a violation of your order. You must file what is known as an Enforcement in the same court that issued your prior order and present evidence as to the specifics of each violation. Today’s blog post will discuss this process in some detail.
Potential remedies under a family law Enforcement suit.
Enforcement actions have many different parts to them that encompass not only Texas Family Law matters, but criminal law and case law that appellate judges have handed down over the years.
You and your attorney must be able to find the correct “blend” of these sets of laws in order to arrive at a remedy that is suitable for your situation. Let’s go over some of those remedies to begin our discussion.
Contempt of Court
Having a court determine that your opposing party is in contempt of court is a very serious matter. Our state law defines contempt of court as the failure of a person to obey an order of the court, disrespectful actions towards a judge or a disruption of courtroom proceedings through negative behavior.
There are dual penalties that a judge in Texas may assess against a person for being found in contempt of court. The first is a civil fine that is often assessed against every violation the court determines is applicable.
An even more serious remedy available is jail time for violations of a court’s order. This is obviously a criminal penalty that is made available even in a civil case like an enforcement. The maximum amount of time a person is able to serve in prison for violation of a court’s order is 180 days. $500 per violation may be doled out by a judge as a penalty.
Beyond the types of contempt of court penalties that can be handed down by a judge, there are two types of contempt.
The first is called direct contempt. This type of contempt is the sort that involves bad behavior in front of the judge. Acting disrespectfully towards the judge or other courtroom personnel can result in fines or jail time for the offender.
On the other hand, constructive contempt is the type that occurred at some previous time and must be proved by you and your attorney. Enforcement hearings are held in order to allow you to present your evidence in order to prove violations of the order that occurred in the past.
A motion to enforce: What it means and how to begin the process
To understand an enforcement suit it is critical to understand just why a court’s order must be followed in the first place. The fact of the matter is that while you and your child’s other parent probably agree that you both want what is best for your child, neither of you can agree on how to go about arriving at “what is best”.
You’ve already gone to court because you couldn’t agree and now have a court order that plays tie breaker for you two.
That order contains the specific rules of engagement for you two to follow. The order’s language must be specific and clear for a court to enforce it potentially. Assuming that your order is, then there is the potential for an enforcement action should you or your child’s other parent violate that order.
Just as the order itself must be clear and concise, so must your motion for enforcement. The motion must include the specific provisions that were violated as well as the relief you are requesting from the court. You can attempt to enforce issues related to custody, possession, conservatorship, visitation, child support, spousal support or property division among others.
The penalties you are seeking must be requested correctly. For example, I noted earlier that a person can only be made to serve up to 180 days in jail for violations of a court’s order. If you ask for more than 180 days a penalty, the opposing party can request a trial by jury and even have an attorney appointed to represent him or her. This follows the law from the United States Constitution.
A real world example of this can be seen in a enforcement case that I defended last year. The opposing party made a mistake in her motion and asked the court to assess far more than 180 days of jail time as a penalty for violating the court’s order. With that said, I made sure to file a motion with the court request a jury trial based on this mistake.
Strategically I wanted to either:
- give the attorneys more time to negotiate a settlement and at the very least
- attempt to knock out the most severe penalty available under the law that could be assessed against our client.
The opposing party chose to pass on the criminal penalties available to her, so our client was able to avoid jail time without having even presented any evidence. That’s already a “win” in my book.
Part two of our discussion on enforcement actions to be posted tomorrow
If you have any questions on this subject please feel free to contact the Law Office of Bryan Fagan, PLLC today. A free of charge consultation where your questions can be answered is only a phone call away.
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Other Articles you may be interested in:
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- Child Support Modification in Texas (Part 1)
- What do I do if I have overpaid child support in Texas?
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- Texas Child Support Appeals
- In Texas are Child Support and Visitation Connected?
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- How to get above guideline child support.
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, Houston, 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.