A parent who has been denied possession and access in violation of a court order can obtain several types of relief in an enforcement proceeding.  First, the violating parent can be held in contempt for each violation.  If a parent is held in contempt, that parent can be sentenced to up to 6 months in jail.  In my experience, most judges are hesitant to throw someone in jail for the first offense, but it is a possibility.  It depends a lot on your particular judge.  Some judges are more inclined to throw someone in jail than others.

Another possible option is suspended commitment – community supervision.  This basically means that the violator is put on probation and their sentence is suspended.  If he or she screws up again, her community supervision is revoked and he or she will serve jail time.   Community supervision usually lasts for ten years.  The judge can also order a party found in contempt to pay a fine.  The fine would be payable to the court, not the other party.

In the judge finds that one party has violated the order, the judge can grant additional periods of possession to the non-offending party as “make up” time. The judge can also order the offending party to execute a bond or post security to secure future compliance with the order.

Finally, the court can award attorney’s fees and court costs to the non-offending party.  If the court finds that the enforcement order was necessary to ensure the child’s health or emotional welfare, an award of attorney’s fees and costs can be enforceable by the same means as child support, except for wage withholding.  If you prevail on an enforcement action, it is very likely the judge will award you attorney’s fees and costs.

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Unfortunately, I hear from parents on a regular basis who are being denied or partially denied possession and access of their child by the other parent.  Sometimes a simple letter from an attorney will be enough to make the other parent comply with the terms of the order.  Sometimes you will need to file an enforcement action against the parent to have him or her held in contempt.  When preparing for an enforcement action, there are a few steps I recommend parents take:

1.  Always arrive at the designated location at the time designated in the order.  If the order says you are entitled to possession at 6 pm on Friday but you tried to pick the child up at 7 pm, you are out of luck.  Similarly, you cannot enforce informal agreements made with the other party for switching days / times.  You can only file an enforcement action for those days / times specifically laid out in the order.

2.  Keep accurate records of when you were denied access.  I recommend keeping a journal or using a calendar to track visits.  When you file an enforcement petition, you will need to specify exact dates, times and locations for any violations.  If you kept records, this will be much easier to do.

3.  If the other parent is refusing to give you your child at the designated time and place, consider calling the local police (assuming you have a copy of your order with you).  The police may or may not help you actually obtain possession of the child at that time, but it will create a record that will be useful in court.

4.  Buy a soda from a gas station or fast food restaurant near the exchange point.  You can use the receipt to show you were in that vicinity on the date / time in question.

The requirements for an enforcement action are very specific.  Therefore, you will fare much better if you have an attorney on your side.  I have seen judges throw out enforcement actions filed by pro se parties without even hearing one word of evidence.  If the motion does not meet the specific requirements of the Texas Family Code, you will lose.

Child Custody

 

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