Learning how to navigate life as a divorcing or divorced parent is a challenge for anyone. Rather than raising your child together with a spouse, you will be acclimating yourself to doing so as a single parent. However, you will still be responsible for parenting as a team with your spouse or soon-to-be ex-spouse; the relationship will change, however, from that of a married couple to a co-parenting relationship.
Adjusting to this new relationship can be among the more challenging aspects of adjusting to life during a divorce and after the case has come to a close. So much of your focus as a parent has been on what is in the best interests of your children. Now that you are going through a divorce, however, you can't help but consider how your life will change in conjunction with living in separate households from your Co-parent.
The reality is that all of you reading this blog post have different circumstances that need to be considered when determining how best to approach this topic. Some of you will be fortunate enough to come out of your divorce with a good working relationship with your Co-parent. You all will be able to put the past behind you and focus solely on the best interests of your children. On the other hand, others of you will not be as fortunate and will instead run into issues on alright wide variety of fronts regarding co-parenting.
In today's blog post, I would like to talk with you about one of those potential problems that you may experience before, during, and after your divorce comes to a close. When your spouse or ex-spouse interferes with your ability to have your children, then that can be among the most frustrating and disheartening of all wrongs that can be committed against you by a Co-parent. When you find yourself face to face with challenges associated with child custody interference, you need to understand what your options are and how your circumstances matter in terms of what to do next.
Rather than finding yourself unprepared if this type of event occurs in your life, the better method to practice would be to be prepared for the possibility of having your Visitation periods with your child interrupted by your Co-parent. While you can hope that it never comes to be that this happens, it would be foolish not to consider what you would do if you were more denied access to your children during a period that you were supposed to be with them. Not only is this harmful to you, but it is harmful to your children and even harmful to your Co-parent. Unhealthy behavior needs to be directly addressed, Ann; you're preparing for this possibility is one way of doing so.
When does the situation rise to the level of a denial of Visitation?
In a divorce case, you will find that Visitation and possession orders are included in either a final decree of divorce or in the temporary orders that will dictate the terms of your life during the divorce itself. These Visitation and possession orders will layout in plain language when you can be with your children and when your Co-parent is entitled to be with your children. Most of the time, the orders are very clear about when periods of possession begin and when they stop. The goal for attorneys is to leave not much to the imagination when it comes to determining when the period stop and begin again.
When it comes to having Visitation or possession denied by your Co-parent, you would be looking to enforce the Visitation and possession orders on a future court date. This is done through a process called an enforcement petition. The enforcement petition will be filed in the same court where your divorce had been or is currently filed. The key to an enforcement petition is addressing the specific times where Visitation was denied, specifying the portion of the court order that was violated, and then seeking a remedy from the court. Typically, that remedy consists of make-up possession time as well as holding your Co-parent in contempt of court for violating its orders.
As with most areas of family law, there are some rules that you must follow when you are trying to exercise your Visitation or possession rights. Before we go any further, I think it is relevant to discuss what you need to do to have position yourself to assert wrongful denial of Visitation. The last thing you want to do is to honestly believe that you were wrongfully denied possession or Visitation only to find out that you did not live up to some end of the bargain when it comes to exercising your rights. Let's walk through when and what you have to do to position yourself well in this regard.
You have to be present to have visitation denied.
One of the key points that we need to make at the beginning of this discussion is that you have to be present in appearing in person at the pickup location to be denied Visitation under the law. The pickup location cannot be one that your text message your Co-parent about 15 minutes before the drop-off and pick-up period; rather, the pickup location must be the one that is listed in your court order. You must physically go to the drop-off and pick-up site even if your Co-parent has already told you that they will not be there or that they will not be giving you your child at the correct time.
On a practical level, what does this mean for you? For starters, it should tell you that you have to be present at the pickup and drop-off site no matter what, even if you have already been told that you aren't going to be able to see your child for your court-ordered period of possession or Visitation. So, you cannot save yourself a trip by staying home if you intend to file an enforcement case against your Co-parent. Rather, you must make an effort to be present at your Visitation and enforcement lawsuit in the future.
It is only at this point when your Co-parent fails to produce your child at the pickup location at the time and date specified in your court orders that they are formally in violation of the court order. If your parent tells you that they will not make your child available but then shows up on time and with your children, this does not count. There is nothing in the Texas family code about attempted or contemplated Visitation denial. Either the Visitation denial occurred wrongfully, or it did not. There is no middle ground.
Keep in mind that your Co-parent, if called upon to testify in an enforcement hearing, cannot be forced to testify against him or herself. If you plan to call your Co-parent as a witness and ask them if Visitation was wrongfully denied, then you should get a separate plan. Fortunately, there is a straightforward method for you to practice as far as how to proceed with the plan in mind geared towards reclaiming any missed opportunities to have your children.
How to position yourself for an enforcement hearing after being denied visitation or possession
It is not enough for you to be denied visitation and possession and then expect the law to come in and take care of this for you. Rather, once you have made yourself available to have Visitation or possession opportunities be denied, you have to follow a course directed towards positioning yourself well any potential enforcement lawsuit. While there are opportunities to take advantage of in all regards when preparing for an enforcement case, there are certainly better courses to take. Here is one way to efficiently prepare for an enforcement lawsuit.
The first thing you should do is look at the court order that provides you with your Visitation in possession framework. The last thing you want is to think that you are in a position to enforce a court order only to find that the court order says something you didn't think that it did. Carefully review the order and make sure you understand what it says. Remember that most court orders are very clear about the beginning and endpoints of the Visitation and possession periods.
As we have indicated a few times already in today's blog post, your job is to go to the pickup location at the specific time and date you are ordered to do so. Driving by in the car and not seeing your Co-parent there does not count. Rather, you have to get out of the vehicle and make yourself available at that time. It is important for you to be on time and waiting for your children. It is not enough to show up 15 minutes late or to arrive 15 minutes early and expect that to work. Arrive on time and make yourself available to have possession denied of you.
The next step may differ depending upon where the pickup location is for you in your Co-parent. If the pickup location is at your Co-parent's home, you need to be able to knock on the door and then wait for a response. If you get no response or are told to go away, you should knock on the door again. Hawking on the car horn or shouting from the driver's side window of your car will not suffice. You need to physically get out of the vehicle and walk to the front door of your Co-parent's home at the agreed time.
On the other hand, some of you reading this blog post have pick-up and drop-off locations in public places. This could be for many reasons but among the more common reasons are that you and your Co-parent feel more comfortable exchanging the children in public or you have agreed to a middle point in between your homes if you live rather far apart in terms of distance. For example, if you have a restaurant parking lot as the pickup and drop-off point for your child, then knocking on the restaurant's door probably doesn't make a lot of sense for you. Here is what you can do to establish that you were at the location at the agreed time.
So it would help if you did something to show that you were at the right location at the right date and time. This applies to your parents, who also have the pickup and drop-off location at a residence. The evidence that you obtain does not need to be something detailed or an affidavit from a witness or something like that. Although, having a witness present always helps establish the certainty and exactitude of what you are saying in a potential enforcement lawsuit. Rather than a witness testimony or statement, what else could be used to provide evidence that you were at the agreed-to location at the right time and date?
My recommendation to clients is that they purchase a candy bar, soda, bottle of water, or something like that and use the receipt for their purchase as proof above there being at the right place in time to pick up their child. Make sure the receipt has the correct date and time on it, and this should be about all you need to establish that you were present, willing, and able to pick up your child, and they were not given that opportunity. I have heard of some people filing police reports to establish that they were present and denied Visitation or possession, but this may be going through too much trouble considering what is involved in filing a police report.
Finally, it would be best to document what a Kurd is in a Visitation or possession notebook. This could be a simple note written on your cell phone or could be a longhand entry into a Journal or notebook regarding any issues that you have experience with possession or the Visitation of your child. Again, you are under no obligation to wait for hours at the pickup or drop-off point for your child. However, you need to establish that you were there and waited a reasonable time for your Co-parent. To me, 20 minutes is plenty of time to wait to establish that you were present.
Then, all you have to do is keep this evidence secure and make sure you are organized for when you present your situation to an attorney. If you are still going through a divorce and have temporary orders in place, you should speak to your attorney about filing an enforcement action after the violation of the temporary orders has a curd. Often, going through with an actual lawsuit within your divorce case itself is not in the best interest of any party. You may be able to find out that working out an agreement instead of an enforcement lawsuit is better for you and your spouse.
If your situation occurs after your divorce has already come to an end, you may need to proceed with enforcement lawsuits. In that case, having an accurate description of what occurred along with any other evidence you have at hand to establish that a wrongful denial has a curd would be something smart to have ready to present to an attorney. There is no one way to have a successful enforcement lawsuit, but I think the steps outlined in today's blog post will certainly set you up for success in the long run. Do not assume that your Co-parent will try to fight their way out of being held responsible just because he was denied Visitation wrongfully.
For that reason, I recommend reaching out to an experienced family law attorney such as those with the Law Office of Bryan Fagan. An experienced attorney can help guide you through filing an enforcement lawsuit and help you make sure that your evidence and other information are well established and organized if an enforcement hearing needs to occur.
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.