Following a divorce or child custody case in Texas, you may be struggling with the concept that you’re no longer able to see your child every day or whenever you desire. While this is certainly an adjustment, an added complication to this situation can occur when the other parent is not following the possession order. It is extremely frustrating when a parent expects to see his or her child, only to be disappointed at the time of the exchange. While co-parenting and reaching amicable agreements are encouraged, this may not be an option for some parent. So, what are your options if the possession order isn’t being followed?
If your possession schedule has become unworkable or is consistently disregarded by the other parent, modifying the possession order could be an appropriate option for you. If a parent is consistently failing to exercise possession at a specified time, or consistently keeps the child beyond their possession, modifying the schedule may offer long term relief for you. While a modification will not hold a parent responsible for disobeying the possession order, it will give you an opportunity to create a new possession schedule that works better for the child and the parents. A modification is also appropriate if the parents previously agreed to follow a different schedule but are no longer able to cooperate and agree. If this happens, asking the court to modify the possession order so it reflects what the parties consistently followed previously may be in the child’s best interest.
If the parent disregards the court’s possession order, or interferes with your ability to exercise your court ordered possession, seeking an enforcement is also an option. An enforcement asks the court to hold one party in contempt for disobeying the court’s order. To have a successful enforcement, you must have a clear and concise order and be able to articulate how the other party failed to comply with the order (i.e.: didn’t appear at the scheduled exchange or picked up the child from school so you could not exercise your possession.) If the court finds the other parent is in contempt, the court has multiple forms of relief to offer the other parent. The court can order additional possession time, order the payment of court costs and attorney’s fees, and even order confinement for a parent that continuously fails to comply. While seeking that the parent of your child be held in contempt seems very harsh, it may be the appropriate remedy if other options and attempts to co-parent have failed.
Writ of Habeas Corpus and Writ of Attachment
If the other parent is keeping your child from you for a continuous period of time beyond their ordered possession, seeking a writ of habeas corpus is the best way to have the child returned to you. If you’re seeking a writ of habeas, you must do so during your ordered possession time. While these hearings are typically expedited, they are not immediate. If a parent is keeping the child in excess of the court ordered possession, but returns the child within a relatively short period of time, an enforcement is the better option for you. The writ of habeas orders the parent to bring the child to court so that the court can determine who has the right of possession to the child. If you fear your child is in danger, you and your attorney may also want to seek a writ of attachment. A writ of attachment orders the parent to surrender the child to law enforcement so that the child may be returned you, instead of having the parent appear at a hearing with the child at a date and time in the future.
If your possession order is not being followed, you have rights and options available for relief. To determine what relief is most appropriate for your situation, you should consult with an attorney. The attorneys at The Draper Law Firm, P.C. are here to help you navigate through this difficult time and to fight for your parental rights.
-Blog post by Shmyla Alam