Enforcements

Enforcements:

If a parent refuses to let the other parent have possession of the child pursuant to the terms of the court order, the remedy is to go back to the court and ask the judge to make them comply with the order. The parent asking the court to enforce the order must show proof they did everything they were supposed to do and the other parent failed to turn over the child. For example, if that parent is supposed to pick up the child on Friday at 6:00 p.m., he must describe to the court each incident where he appeared at the right time and place and the other parent failed to surrender or release the child. If the court orders the parent to comply with the order and the parent still refuses, the other parent may also ask the court to issue a criminal contempt citation. If the court finds the parent guilty of criminal contempt, the punishment may be jail time and/or a fine.

You cannot force a parent to visit his or her child. There are no legal remedies to make a parent exercise his or her visitation rights. The parent with whom the child primarily lives has to make the child available according to the terms of the visitation order, but if the parent does not want to visit then there is nothing the court can do. However, failure of a parent to visit the child may become an important issue if there are later court hearings regarding conservatorship and possession issues.

The geographical restriction is on the child, not the parents. This means if the parent who has primary possession of the child wants to move, he or she can, but the child cannot move if there is a geographical or domicile restriction in the court order. Normally, if the order has a specific geographical restriction on the child and the possessory parent still lives within that area, the parent who has primary possession of the child must get the written agreement of the other parent before he or she can move. This written agreement should be filed with the court. If there is no agreement, the parent wanting to move must obtain permission from the court. The court will require the moving parent to show what substantial change in circumstances is requiring the move and how the move will be in the best interest of the child. The parent must show the court why the move away from the other parent would be best for the child, and explain how he/she will assist in helping the visiting parent continue a frequent and meaningful visitation schedule with the child. If the possessory parent has moved away then it is possible the court's approval is not needed if the parent with primary possession wants to move, but this depends on the terms of the order and the moving parent should read over the terms carefully.

If the primary care parent disregards the order and moves without the agreement of the other parent or the court, the visiting parent can go to court and request the court enforce the terms of the geographic restriction. The court could force the parent to bring the child back to the location where the visits were supposed to take place, even if the parent has moved out of state. This may have the effect of the moving parent being forced to move back, or losing the right to have the child primarily reside with him or her.

If there is no geographical restriction in the order, the parent is free to move wherever and whenever he/she wants. The parent with whom the child visits may not prevent the parent from moving without going to court and getting the court to modify the prior order.

You must present the child for visitation, even if they do not want to go. The only exception to this rule is if a parent believes the child may be in danger if the visit occurs. If the parent suspects the child may be in danger, then he/she should contact the appropriate law enforcement or child protection agencies. The parent should also file an emergency motion with the court asking the court to suspend the visitation because the child is in danger. A parent cannot refuse to send the child for a visit because the child does not like the other's parent's house, neighborhood, spouse, boyfriend or girlfriend, or just because they are having a bad day. Texas law requires that the parent make the child available for visitation unless the parent goes back to court and gets a different court order. The parent is not allowed to alienate the other parent and, even if the parents do not like each other, the child should always be encouraged to visit the other parent.

The order for child support and the order for visitation are completely separate. The court looks at this from the child's point of view. No matter what, that parent is still the child's father or mother. Whether or not the parent is paying child support, the child still has a right to a meaningful relationship with his/her parent. Similarly, even if the parent ordered to pay child support does not or is not allowed to visit, he or she still must pay support.

The parent who is supposed to visit the child should make every effort to pick the child up on time. If the parent is going to be late, he or she should notify the other parent. If the parent shows up within 15 minutes of the appointed time, then the other parent should go ahead and let the child go with the visiting parent. However, if the parent shows up an hour late, then it is up to the discretion of the primary parent whether to let the child go. This comes down to what is reasonable. If the primary parent has other plans, he r she is not expected to wait all weekend for the visiting parent to show up. The court will consider what is reasonable, and what is in the best interest of the child when determining how to interpret these situations. The parents should use appropriate judgment and strive toward cooperation as much as possible.

A child support order is an ORDER from the court. This means if a parent refuses to timely pay his or her child support, the other parent can go back to court and ask the judge to enforce the order. The parent who refuses to pay child support can be punished by contempt and put in jail and/or fined. A parent who is not receiving child support may seek assistance through the collection of the child support office at their local Attorney General's office or may hire a private attorney.

 

Enforcement Remedies in Family Court:

The enforcement of family law related court orders involves complex issues of procedural law, criminal law, statutory interpretation, and case law. Depending on what kind of order is sought to be enforced, there are many different remedies available.

Contempt of Court. Contempt of court is defined as the failure of someone to obey a lawful order of a court, disrespect for the judge, or disruption of the proceedings through bad behavior. A judge may impose civil (a fine) or criminal (jail) sanctions for someone found guilty of contempt of court. Contempt of court is often referred to simply as "in contempt".

The two basic types of contempt, criminal and civil, are defined by the punishment imposed. For criminal contempt, the punishment is incarceration in the county jail for a time certain (maximum of 180 days per violation) and/or a fine (maximum of $500 a violation).

Contempt can be further classified into two categories based on when the offensive act occurred. Direct contempt is when the contemptuous acts occur in the presence of the judge. If someone is disrespectful to the court, the court has the authority to hold that person in direct contempt and assess a fine or incarcerate the person. If the acts occurred in the past and must be proven to have occurred, then the contempt is constructive. Child support and visitation violations are examples of constructive contempt.

Why is the original order important? The original order specifically spells out what must be done to comply with the order. The language must be clear, specific, unambiguous, directive, and cannot be subject to more than one interpretation or meaning. If these requirements are met within the original order, then the order may be enforced by contempt.

Motion for Enforcement. A motion for enforcement is a motion filed with the court to enforce a final order for conservatorship, child support, possession of or access to a child, property division, spousal maintenance, or other provisions of a final order.

What must be stated in a motion to enforce? The motion to enforce must be clear as to what type of punishment is being requested (criminal or civil or both), including how many days and/or the amount of the fine requested.

If the punishment requested is incarceration for more than 180 days and/or a fine of more than $500, the person being sued for enforcement, called the respondent, may request a jury trial and may be entitled to a court appointed attorney if the court finds he does not have adequate income or resources to afford one.

A motion to enforce a child support order must:

• include the amount as provided in the order, the amount paid, and the amount of arrearages; and

• if contempt is requested, must include the portion of the order allegedly violated and, for each date of the alleged contempt, the amount due and the amount paid, if any.

A motion to enforce an order other than for child support, must, in ordinary and concise language:

• identify the provision of the order allegedly violated and sought to be enforced;

• state the manner of the respondent's alleged noncompliance;

• state the relief requested by the movant; and

• contain the signature of the movant or the movant's attorney.

What deadlines apply to getting a contempt or enforcement order? When bringing a motion for enforcement the first thing that must be addressed is whether a court retains jurisdiction to render a contempt order. A contempt order for failure to com- ply with orders must be brought by the following deadlines:

Enforcement of Child Support – A contempt order for failure to comply with a child support order can be brought in the last court to hear the case if the motion for enforcement is filed no later than six months after the date: (1) the child becomes an adult; or (2) the child support obligation ends under the order or by operation of law. However, if the enforcement suit is brought to collect child support arrearages, the statute of limitations does not apply and is indefinite.

Enforcement of Property Division – For personal property in existence at the time of the divorce decree, the suit must be filed before the second anniversary of the date the decree is signed or becomes a final order after appeal, whichever is later, or the suit is barred. For future property not in existence at the time of the divorce decree, the suit must be filed before the second anniversary of the date the right to the property matures or becomes final, whichever date is later, or the suit is barred.

Enforcement of Spousal Maintenance – The Texas Family Code is silent regarding the enforcement of spousal maintenance as it relates to a statute of limitations.

Enforcement of Visitation – A motion to enforce possession or access to a child must be filed not later than six months after the child turns 18 or six months after the right of possession and access ends under the order.

How must I notify the opposing party (the respondent)? The motion to enforce must be personally served on the respondent accompanied by an order to appear at a “show cause” hearing. The respondent is entitled to 10 days' notice of the hearing. If the respondent is served less than 10 days before the court date, it is easy to avoid any problems by simply swearing the respondent to reappear at a later date, unless the respondent will waive the 10 days' notice. If the respondent is served with the order to appear less than 10 days before the hearing date, the respondent must still appear in court on the hearing date, or a capias may be issued for his arrest.