Have you had your spouse or ex-spouse refused to allow you Visitation or possession of your children during that period at the court granted to you in temporary orders or a final decree of divorce? Were you upset, to say the least, but didn't exactly know how to proceed? Were there any remedies out there for a person like you who wrongfully had Visitation or position denied a few? What can be done to address this wrong and make sure it doesn't happen again?
These are important questions for you to be able to have answered. As a parent, I understand how important it is to your relationship with your kids to spend time with them. It could be that your most significant concern in a divorce scenario was that your relationship with your children would suffer. Not only did you and your attorney spend a great deal of time negotiating with your spouse during the divorce to come up with the most equitable possession and Visitation schedules possible, but this was also a concern that kept you awake at night more than once. You thought you had a good system set up for your divorce only to find out that you were denied possession more than one time for reasons that did not add up in your mind.
Fortunately, I can tell you that method 2 best ensure that you are not made a victim of wrongful possession or Visitation denials again. No system is perfect. I'll be point blank about that. The information that we will go over today does not guarantee that you will not be taken advantage of in this regard again. It also does not guarantee your success in a courtroom or negotiations. However, what it does do is allow you to put your best foot forward by being able to present a strong case for consideration in front of a judge. Preferably, the stronger case you can present before going to court would allow you in your Co-parent to negotiate a settlement without ever having to step foot in a courtroom.
Be prepared when entering an enforcement case.
Like with anything else you encounter in life, if you are prepared for success, you will have a much greater likelihood of achieving it. Those who failed to prepare should prepare to fail. An enforcement case is extremely complex and detail-oriented. This means that while it is difficult to even wander into an enforcement case, you cannot wander out of 1 and expect to have accomplished your goals along the way. For that reason, you need to become familiar with the aspects of an enforcement case on a granular level.
The document that will be filed initially in your enforcement case is called a motion for enforcement of possession or access. You and your attorney will complete this document and file it with the court. However, let's assume a situation where you choose not to hire an attorney or have no ability to hire an attorney. In that case, I want to walk through the steps in a more detailed fashion for the rest of today's blog post. It may become redundant for those of you who will be hiring an attorney, but at least at that stage, you will not be able to say that you do not understand something about the case. By reading today's blog post, you will understand almost everything about the enforcement case. Certainly, you will understand more than just about anyone else who files an enforcement case in Texas.
A civil case information sheet the details the parties to your case and the subject matter contained therein will need to be filed initially. This document will be filed with your motion for enforcement along with the filing fee. The clerk for your family court will post the filing fees for various types of cases online. You should look up these filing fees as well as the criteria for determining whether or not filing fees can be waived for you and your family.
Enforcement cases are the type where a court date will need to be set sooner rather than later. You or your attorney would need to call the court coordinator for the OR judge to determine when a hearing can be set. Typically, an enforcement action requires that the judge sign an order to appear that will mandate your Co-parent to appear in court on a certain day and time. The judge will also need to set the motion you are filing for a hearing. If you are proceeding independently, you should write down everything the court coordinator or clerk has to say. These folks will not provide you with legal advice, but they can provide you with basic information about the procedures and their particular court.
Filing your motion for enforcement and setting your case for a hearing
Your paperwork will need to be filed with the district clerk for the County in which you reside. Note that if you have moved since your divorce, you will still be filing your case in the same court where your divorce had been filed. That court has likely retained jurisdiction in the ability to issue orders related to your case and family. Fortunately, almost every County in our area accepts documents solely via online filing these days. You would need to gain access to a website that would allow you to file documents online. If you have an attorney, the attorney will certainly know how to do this step without your oversight. However, I always recommend that you stay on top of the work your attorney is doing so you know the process and what steps are being taken to help you.
The documents will be file-stamped by the clerk. Having the documents file-stamped means that you won't record the date on which the motion was filed and copies of the documents to take home. The official copy will remain at the courthouse for your file. Your attorney will have copies of your documents, but I would recommend asking the lawyer to send you at least PDF versions of everything that has been filed. I find that those clients who read the filed documents know what is going on in their case much better than a client who allows the attorney to do the work for them.
As I mentioned a moment ago, you will need to set your motion for enforcement for a hearing. The court coordinator will give you instructions on setting up a hearing depending on the County where your case is filed. Be aware that your case cannot be set for a hearing within 20 days of the date you file your motion for enforcement. The reason is that your Co-parent has at least this amount of time to be given notice of a hearing. In a situation where you are asking for a contempt remedy from the court, your Co-parent will have to have received at least 10 days' worth of notice before a hearing.
The judge will sign your order to appear.
Along with your motion for enforcement to appear must be filed, as well. These documents should be filed concurrently and not one after the other. The judge will sign the order to appear, and you can request copies for yourself and all the parties to your case. Again, the clerk will keep the original in your file at the courthouse. Once you have filed in motion for enforcement, received a hearing date, and followed through with the steps of having an order appears signed, you can then move forward to providing notice to your Co-parent of your motion having been filed.
Provide notice to your Co-parent that your motion for enforcement has been filed
This comes down to telling your Co-parent what you see that are violations of the court order and what relief you will ask from the court. Your paperwork from the court will need to be personally served on your Co-parent. This means that a private process server or a constable will serve the order to appear in motion for enforcement on your Co-parent. If your divorce is still ongoing, you can skip this step and email a copy to your parent's attorney.
If you are enforcement cases occurring after the divorce is already over, then you will need to provide a citation and include that along with all your other paperwork from the court. The citation explains what your co-parent is being served with and when they need to file a response. When the constable or private process server completes service to your Co-parent, they will return a document called a return of citation and file that with your court's clerk. Once that return of citation has been in the court's file for at least 10 days, you may have a hearing related to your motion for enforcement.
Getting ready for a hearing on your motion for enforcement
It isn't enough to wait around after filing the paperwork until the day of your hearing arrives. Brother, you have to continue to prepare; in the meantime, Ann should be working towards a settlement, if possible, with your Co-parent before the court date even gets here. I think most people would agree that it is far preferable to settle your case outside of court than to wait and see what a judge has to say once you can present evidence.
If a settlement is not possible, you should prepare any witnesses that you are going to present in a hearing. This could be family members, friends, or any person who has pertinent information about the wrongful denial of your Visitation or possession. You and your attorney should prepare questions to ask these folks and work with them to practice their responses and anticipate cross-examination from the opposing attorney.
It may sound like doing this next step is too little too late. Still, I would recommend looking at your court orders to re-familiarize yourself with what the temporary orders or final decree of divorce have to say regarding your possession or Visitation schedule. The fact is that this information will be relevant to your case and a possible hearing. At the very least, you could be questioned about the order on the witness stand and have to be able to have at least a passing knowledge of what your order says. Otherwise, it is helpful to understand what the order says so that your testimony is better overall.
The hearing itself
Simply put, the hearing is spent with you asking the judge for what you want and explaining why you should get what you were asking for. Assuming that your hearing will be in person, you should leave in plenty of time to make it to the courthouse. If you live in the suburbs of Houston and are having to drive downtown to the courthouse, you should make sure that you have left and plenty of time. Getting to the courthouse early is not a bad thing. You should look up beforehand what floor the courthouse your courtroom is on and be prepared to wait in line as you go through security.
Unless you are an attorney, you will not be able to cross the threshold at the front of the courtroom and approach them while the court is in session. Most courts have their offices next to the courtroom. You should make a point to stop by the clerk's office before the court to see if they need any additional documents or if the judge will want anything at the time of your hearing starting. Once you have determined what the judge needs before your hearing, you should go to the courtroom and take a seat.
Keep in mind that talking to a judge does not have to be difficult. You should approach the judge only if asked, but it should be courteous and respectful when answering his or her questions. The bottom line is that the judge needs to know how your Co-parent violated the court order and what dates the violation occurred. If you have an attorney, you should expect to answer questions regarding these violations, period; if you are representing yourself, you should be prepared to testify directly to the judge based on the questions they ask you.
You should avoid speaking casually or in a vulgar fashion about your opposing party and should be respectful of them. Remember that this is not a personal matter for you. Once you step into the courtroom, you should act in a businesslike manner and approach the case as such. Assuming that your Co-parent appears in the hearing, you should be prepared to cross-examine any witnesses they present if you do not have an attorney.
Once the judge has listened to all testimony and received all evidence, they will issue a decision in your case. Oftentimes the judge will issue a ruling on the spot, and he should be prepared to write down everything they say; what the judge states in their ruling will need to be written down in motion for enforcement of the Visitation order. Florida needs to say and reflect exactly what the judges said. Once all parties have signed the order, you would submit it to the judge for their signature.
By now, I hope you have seen how important it is for you to have an attorney to represent you in an enforcement case. From the beginning of the case before filing until the end, when an order needs to submit it to the judge, many moving pieces require a great deal of know-how and skill to accomplish. I like to mention to people in this regard that while you could represent yourself in an enforcement case, your time is likely needed elsewhere in your life. Most of us do not have an unlimited amount of time to devote to a legal case like this. You are better off working with an experienced and knowledgeable family law attorney rather than taking it up to chance by representing yourself.
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 consultation 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 and how your family circumstances may be impacted by the filing of a divorce or child custody case.