Expert Insights into Enforcing Possession and Access

In this episode, partners Holly Draper and Carrie Tapia discuss the complex issue of enforcing possession and access. Holly and Carrie bring their extensive expertise in family law to shed light on the often-challenging area of enforcing possession and access, offering valuable insights for both legal professionals and individuals navigating these issues.

  • Unpack the critical elements of enforcing possession and access in family law cases.
  • Learn the importance of specific and enforceable orders in successful contempt proceedings.
  • Gain insights into defending against enforcement actions.
  • Understand the procedural nuances from filing motions to handling court proceedings in enforcement cases.

For an in-depth understanding of the enforcement of possession and access in family law, and to benefit from Holly and Carrie’s expert guidance, listen to this episode on Spotify, Apple Podcasts, or simply hit play above.

Mentioned in this episode:


Carrie Tapia: Just remember who, what, when, where, how and sometimes why whenever you’re doing anything with an order, an enforcement of possession and access or child support. You have to spell out all those elements.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, attorney Holly Draper.

Holly Draper: I want to welcome Carrie Tapia back to the Texas Family Law Insiders podcast. Carrie is now a partner with The Draper Law Firm. And I thought it’d be great to have her on here today to talk about an issue that we’ve seen come up a lot. And we’ve seen a lot of poor lawyering, I will say and also poor judging on these issues.

So we wanted to kind of talk a little bit today about enforcements specifically related to possession and access. And when I first brought up this idea in talking to Carrie, she said, yeah, all the enforcement stuff seems to talk about child support. And there’s plenty of child support enforcement information out there.

But hopefully, this podcast can get you some good information for enforcing possession and access or defending against an enforcement for possession and access. So Carrie, why don’t you start us off. Talk about what one might want to enforce and when we can look at doing an enforcement by contempt.

Carrie: So obviously, with an enforcement for possession and access, someone wants to file an enforcement because they think the other party is not following the underlying order about the possession schedule, or contact access with the child.

So if you’re going to enforce by contempt, which is the way to get jail time, it has to be filed in the court of continuing exclusive jurisdiction. And it also has to be filed within six months of when the child becomes an adult, or emancipates. Or when the right of possession and access terminates under the underlying order or by operation of law.

Holly: So if you feel like you might have a good contempt case for an enforcement, we’re going to kind of go through what the elements are for proving contempt, and actually getting a contempt finding when you have a possession access issue. So the first thing is proving that there was an order that was enforceable by contempt. It must be in writing and signed by the court.

If you had a judge who said you’re ordered to surrender the child at this time at this place, verbally in court, and it was not reduced to writing, that cannot be enforced by contempt. It must have been in effect at the time of the violation. So your judge gives a ruling orally in court, you need to turn over the child on this day, on this time, in this place.

It doesn’t happen and then you subsequently get a written order after the date of the violation, that cannot be enforced by contempt either. The violations have to be after the written order has been signed, laying out the specific requirements, it has to have been known by the respondent. So if you have a default order, and it was never served on the other side, you are not going to be able to get them held in contempt.

And finally, I think this is where people get into trouble is that the order must be reasonably specific. And this is something attorneys should be thinking about at drafting a final order stage, long before you were trying to enforce it. But Carrie, can you talk a little bit about what it means that an order has to be reasonably specific?

Carrie: Right. So it has to say who’s supposed to do what, when and where they’re supposed to do it, how they’re supposed to do it, and sometimes why they’re supposed to do it. Those are the sloven or slaven, I never know if I’m pronouncing that correctly. But those are the terms that are in that case that say what is supposed to be specific in order for it to be enforceable by contempt. So beginning at six o’clock pm on the day that school is dismissed for Thanksgiving break, that’s specific enough.

Any random person can pick up the order and figure out which day that was supposed to happen. But saying possession is agreed upon or giving either parent or either party the discretion to decide whether or not the possession begins, or where, or how, or when it begins is not going to be specific enough for that order to be enforceable by contempt.

Holly: And I think you know, when you’re drafting orders, you want to think about kind of like you just mentioned, could a random person pick up this order and know what was supposed to happen and whether or not this was a violation. If we have to go back and look through years worth of calendars, we have to get some sort of data point to say, oh, well, he had this date, so then she gets that date.

The more of that type of thing you have, the less enforceable that order is. So maybe you can enforce it, maybe you can’t. But when you are drafting, you want to avoid that as much as possible, so that it is something that could very easily be enforced.

Carrie: First, third, and fifth is your friend rather than every other weekend, because it’s easier to enforce.

Holly: Exactly. So what happens if somebody wants to enforce possession and access, but you don’t think it is specific enough?

Carrie: They could file to clarify. Ask that the court clarify the underlying order to add that who, what, where, when, and how to make it enforceable. And then that way you would have an enforceable order going forward. Can’t go backwards with it, but you would have something enforceable going forward.

Holly: And that’s something if you’re filing an enforcement, and there is any doubt at all about whether or not something is enforceable, you should include that alternative clarification request. Probably even if you don’t have any down because you never know, the judge might have some doubts. So you want to make sure that you have that in the background as an option.

So that going forward, if something’s not enforceable, it could be enforced. Okay, so we went through the first element was proving that we have an order enforceable by contempt. Second thing we have to do is show that the respondent violated the order. Describe for us what we need to put in our motion for enforcement that will meet this requirement.

Carrie: So you have to identify the provisions of the underlying order that were violated, copy and paste that underlying order into your petition. Everything that has to do with the possession. A lot of times what people will do is they’ll just put the possession schedule, but not put those general terms and conditions that actually have that order language about who’s supposed to surrender and return and where and how and when.

So you have to include everything about that possession that was violated. And then you also have to specify the date, time, place, and the manner in which the respondent did violate those provisions. You can’t just say it was November.

No, you have to say at six o’clock on Friday, November 5th, whatever the year is, respondent failed to surrender the child at blank. Wherever that order says that that surrender was supposed to occur. You have to spell it out. That way, again, a random person looking at this can tell what it is that you’re alleging occurred.

Holly: And going back to cutting and pasting or writing out every relevant provision of the order, I would also attach a full copy of that order, I would do both. I would not just attach a full copy of the order, because then we’re not really being specific about what provision is violated. But then when you’re laying out the violations, so you cut and pasted above and you said dad is supposed to return the child at 6pm at mom’s house.

Well, then in the order, you want to say specifically on February 3, 2023, dad failed to return the child at 6pm at mom’s house. Spell it out. Say exactly what they did, not just he violated the order on February 3, or February 1, whatever date I arbitrarily picked there. And I know that it gets repetitive and it makes your motions get really long. But don’t leave, you can lose your enforcement case on the pleadings. It happens all the time.

And even if you don’t lose on the pleadings in the trial court, if your pleadings were defective, you can lose on appeal. So you want to make sure there is no doubt that you have laid it out for every single violation you are alleging, or you are not going to be able to recover those. Next, and this is one I think a lot of people forget, when we’re talking about contempt, you have to establish the violation was willful. What does that mean?

Carrie: Well, you can’t get criminal contempt if you don’t establish that it was willful. So that means you have to show that there was a deliberate or intended violation as opposed to an accidental or inadvertent or negligent violation. Courts are split about what this actually means.

So this is where you’re going to need to know your court, know your judge and know what the case law is on the Court of Appeals for the court that you are practicing in about whether or not a passive violation such as failing to insist that a child go with the parent is a willful violation.

Some courts are going to expect that the parent surrendering buckles that kiddo into the car for the other parent, or else it’s going to count as a willful violation. Others say as long as you put the kid on the front porch, it’s up to the pickup parent to get them in the car. So courts are a little bit split on that right now. But you do have to show that it was willful.

Holly: So an example. This is kind of based on something that I’ve seen on some appeals that I’m working on. If there’s a long drive between locations for the exchange, and there’s a traffic jam, and somebody is running late, that’s not a willful violation. Or even if somebody you know, got stuck at work late, and they tell the other side, hey, I’m gonna be there 30 minutes late or whatever the case may be, I don’t know, I think you can get criminal contempt for that violation.

Because they’re not like, hey, I’m not gonna let the kid see you, type of intent. They’re just running late. Now, if somebody is perpetually late, because they’re just dropping the ball, that’s a different story. But if there’s a good reason that somebody is going to be late for an exchange, then I would say that’s not a willful violation. So we’ve got our motion for enforcement of possession and access.

And one of the things you know, we kind of talked about laying out the provisions of the order and laying out each individual violation. The reason that you need to do that is because we’re talking about throwing somebody in jail, possibly, and we have due process issues. So in order for your enforcement to hold water, your motion must meet the requirements of due process. Talk a little bit about what that means.

Carrie: So I mean, it falls under what we were talking about earlier, like you said with spelling out exactly full and complete notice of the subject matter and when, how, and what you’re accusing them of being guilty of being held in contempt for. To meet due process requirements, the motion must meet the requirements of Texas family code, 157.002.

It has to include the portions of the order that were allegedly violated, like we talked about, copy and paste it and attach it as an exhibit as well. Cover all your bases. And the date, place, time, and manner of the non compliance. So if you’re not doing that, you’re not following due process. And so the respondent can’t be held in contempt.

Holly: So if you are the one defending against an enforcement, do not under any circumstances, file special exceptions, when they have failed to meet these requirements. You do not want to give the other side the opportunity to replead and correct the defects in their enforcement, because that could allow them to win and get your person thrown in jail.

So when someone has defective pleadings, they have not met all the requirements, it did not meet the requirements of due process, it did not meet the requirements of the Texas family code, you just smile and nod you show up in court and you get ready to request judgment based on the pleadings after they have started their case. I see this a lot where people’s initial reaction when there’s not notice is oh, these pleadings are defective, I need to file special exceptions.

Do not do that. Okay, so another provision you might include in your enforcement is the possibility of future violations. I know this is something standard that we have in West forms, or tex docs or whatever in a motion for enforcement. Talk a little bit about what we include, why, and what you need to prove.

Carrie: So for the possibility of teacher violations on possession and access, if there’s been a history of not surrendering the child and you know that it’s going to take four to six weeks before you actually get to court on this motion, you can go ahead and plead for these future violations.

You have to say, based off of the history and the pattern and the behavior of the respondent, it’s anticipated that future violations will occur. And so you go ahead and ask for that makeup time and ask for that contempt based on those violations in the event that they occur in the future. You still need to spell out the dates of the upcoming possession time. That way it’s still specific.

Voiceover: This episode of The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. Providing family law appellate representation for non parent custody cases, jurisdictional issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access. For more information, visit or call 469-715-6801.

Holly: The next thing you need to include in your motion is that you must state the relief that you are seeking. Are you seeking criminal intent? Do you want someone thrown in jail for 180 days or however long for their violations? Are you seeking civil contempt? Do you want them held in jail until they do whatever it is you want them to do? I’m not sure civil contempt is super popular on the possession and access enforcement side, but it’s there.

Sometimes people want makeup time. If the child has been withheld, then that’s something you want to include in your motion and that you are entitled to get if there’s a finding that the person violated the order. As we already mentioned, you want to ask for clarification. If this order is not specific enough to be enforced, for some reason, we want the court to clarify it so that it is specific enough to be enforced in the future.

Now, be careful here, you’re not asking for a modification. So if your order is so bad, and trust me, we’ve seen them, they are bad out there. If your order is so bad that we can’t just clarify it, you’re talking about a modification, and that’s a whole other can of worms. If there was a bond that had been paid in the past, you could ask that it be forfeited, you could ask the other side of the order to pay a bond.

And you can ask for attorneys fees and costs. And one important difference to be aware of on an enforcement for possession and access as compared to an enforcement for child support is that attorneys fees and costs are discretionary. In this type of enforcement, the court may order them as opposed to child support where the court has to order them if someone has been violated.

Again, as we mentioned, I would attach a complete copy of the order, even if the motion recites verbatim the provisions that were allegedly violated. I don’t know that the code requires that specifically, but I think that’s the best practice to make sure there are no doubts about this is the order that we are trying to enforce.

And I’ve picked out these little provisions from it, so that everyone knows and is on the same page. Okay, so motion for enforcement has been filed, the respondent has been served. If you are the attorney for the respondent, what should you do in terms of an answer?

Carrie: Well, as you said, don’t file a special exemption and point out their flaws. You don’t want to give them the opportunity to amend their motion. But there are some affirmative defenses that you can include in your answer.

Such as voluntary relinquishment. If you’re saying that the person that’s filing the motion never even came to pick up the child, well, that would be a voluntary relinquishment of that time. Involuntary inability to comply, such as you were talking about earlier. Got held up at work, there was a traffic jam, I was in the hospital, if there’s reasons that that violation occurred. Or mutually agreed modification of the terms.

If you’ve got text messages from the other party saying, oh, I know that order says to meet me at McDonald’s, but let’s meet at Chick fil A instead. And then you go to Chick fil A, the other party goes to McDonald’s, and then tries to file this. So that would be an affirmative defense that you could use in your defense that you include in the answer.

Holly: And along those lines, it’s a really good idea if you do have a mutually agreed modification of terms that’s going to be ongoing. It’s not just hey, for this weekend, let’s change something. But I always want the exchange location to be Chick fil A instead of McDonald’s, to get that agreement in writing and get the court to sign off on it as a new order.

Because otherwise, you’re never going to be able to enforce that new exchange location. Meaning you can never enforce the exchanges at all. Okay, so now we get to our hearing. What does the petitioner or the movant need to prove at a hearing on the enforcement?

Carrie: They have to prove everything that they pled for. So they have to prove the date, time, place and manner of each violation. And another important thing to remember if you’re bringing this type of case is that you have to prove it without the respondent’s testimony. You have to prove it with your own client. The movant has to be able to get evidence admitted, testimony admitted to prove that these provisions were violated. And the specifics of which exact possession time was violated.

Holly: And it’s not enough to just prove the violations. You have to prove the order was in place. You need to get that order into evidence. Do not just say I want the court to take judicial notice of that order. That is not enough. You need to use that order as an exhibit, you need to specifically reference the provisions of the order that you are alleging were violated before you can have somebody found in contempt of them. So it’s hard.

A lot of our courts really restrict your time. And so you want to be aware, is this court going to do that? How much time am I going to have, and maybe I limit my violations so that I can get in the evidence for some of them. You might not be able to get them in for all of them. But if you don’t get in for some you lose if you’re trying to do that in the interest of time.

So on the defense side at the hearing, there’s several things that are super important to think about as the attorney. First, if the pleadings were defective, as soon as that first witness is sworn in, you’re going to move for judgment on the pleadings. We hear people throw around move for directed verdict. Well, it’s not really a directed verdict, because there’s no jury.

So really, you’re moving for judgment at that time on the pleadings. And get it on the record what you’re doing, why the pleadings are defective. Just because you do it, and just because the pleadings are defective does not mean that the judge is going to do what they are supposed to do.

As an appellate lawyer, I see this way too often, where judges don’t know the law, they don’t follow the law, it is what it is. But you got to make sure you are doing what you need to be doing for an appeal in case it comes to that. So step one, you’re gonna move for judgment on the pleadings only after the first witness has been sworn. If the pleadings were defective judge should grant in your favor at that point, it should be dismissed, case should be over.

If you don’t win at that stage, then the petitioner is going to go through their evidence. If they did not prove there was an order that was in effect, what that order was, when it was signed, what the relevant provisions of the order were, and the date, time, place and manner of each violation, move for judgment after the petitioner rests.

If you don’t get it there, which once again, I see it all too often that you should get it there and you don’t, then the ball is in your court to put on your defense. One thing to be really careful about. This isn’t necessarily in your defense, but it could be. It could be as part of your cross of the petitioner, don’t ask questions to help them put on their case.

An example of this that I saw reviewing a transcript recently, the location of the exchange was supposed to be at a police station. The petitioner never said where these violations occurred. And then the defense attorney went through and asked for every violation. Did you show up at the police station? Did he show up at the police station?

So that type of questioning could get them their evidence that you’re trying to win on. You don’t want to help out the petitioner’s attorney, when they failed to make their claims. If they do not prove the place, don’t ask about the place. Unless you have very firm evidence they were in another place, in which case, great, by all means.

But if they didn’t say the place, they could have been there. We don’t know. Don’t ask. Ball’s in their court. Okay, so your hearing is over, judge finds somebody in contempt and now we have to get an order based on that finding. It’s pretty surprising to me how common it is for the order not to meet the requirements of the code.

So when we’re looking at appealing a contempt finding, we look at the pleadings, we look at the hearing, and we look at the order to see has this ticked every box of requirements from the code? If it hasn’t, it’s gonna get thrown out on appeal. So what has to be in the final order?

Carrie: Basically, the same thing that had to be in the petition, and proven at the hearing. You have to say the specific elements, you have to say the underlying order that was violated, the portion of it that was violated and when and where and how it was violated. So you have to meet those requirements to keep it from being overturned.

Obviously, the order also has to be in writing signed by the judge, and it has to include the findings, spelling out the order for which enforcement was requested, including the acts or omissions that are the subject of the order that were violated. Include the manner of non compliance.

And if it’s criminal contempt, if you’re looking for incarceration or a fine for criminal contempt, you have to include findings that identify, set out, or incorporate the provisions of the order where enforcement was requested and each date of each act of contempt.

Holly: On the date, you want to be really careful about when did a violation occur? So I’ve seen out there notice requirements. For example, if you are supposed to provide notice of a child’s doctor’s appointments, what is the requirement of when you’re supposed to provide that notice? Is it the date of the doctor’s appointment? Probably not. It’s the date you made the appointment, or it’s within a certain number of days of when the appointment was made.

So you want to be careful. This goes both to the pleadings, the hearing, and this, but just something that you said made me think of that where you know, really think about what the notice requirements are, what the timing, what makes it a violation. When did that violation occur? And the order has to spell that out. If the order says the date of the doctor’s appointment, it’s not valid, because that’s not when the violation occurred.

Carrie: Right. And then if you are getting incarceration ordered, you have to have a commitment order signed as well, in addition to the order of enforcement. Incarceration without a valid commitment order is a violation of the respondent’s due process, and entitles that person to habeas corpus relief.

Holly: So your client has been found in contempt, and you are looking at an appeal. This is something that I’ve discovered most lawyers do not know. That is a contempt order is not reviewable on appeal. This does not mean that you are stuck with a contempt order that was improperly granted. This means you’re looking at a mandamus or a habeas depending on what the circumstances were of the contempt order.

There could be some ancillary issues in the contempt order that are appropriate for appeal. Such as if there were discovery sanctions ordered, or certain types of attorney’s fees awards, that could be appropriate for appeal. In which case you’re looking at both. But the actual contempt order itself is either going to be a habeas, which is if it involves confinement or other restraint on liberty, this is not included suspended commitment.

This means you have been ordered thrown in jail, then the order is reviewed by a writ of habeas corpus. Otherwise, for me doing a petition for writ of mandamus, for practical purposes, it’s a very similar procedure. A mandamus is a much bigger undertaking, because you have to create your own record and all of that, but it doesn’t come with the timetables that an appeal comes with, and you’re gonna get a ruling much quicker.

So there’s not a real deadline, and you get a quick ruling. So in my opinion it’s a lot better that you can mandamus a contempt order as opposed to an appeal. If the trial court did not find someone in contempt, that cannot be appealed. No appeal, no mandamus, no nothing.

If you filed a motion for enforcement on possession and access, and judge says no, there was no violation, it’s over. You cannot file in an appellate court. So that pretty much gets us to the end of the entire circle of process of a motion for enforcement of possession and access. Did you have any last points, Carrie, you wanted to bring up?

Carrie: Nope. Just remember who, what, when, where, how, and sometimes why whenever you’re doing anything with an order and enforcement of possession and access or child support. You have to spell out all those elements.

Holly: And remember that enforcements are so much more technical than any other type of proceeding that we’re involved in in family law. If you are a new attorney, and you’ve never done an enforcement before, you need to talk to somebody who has, and really have them review your pleadings.

Make sure that you are checking all those boxes, or you’re going to lose before you even get started. And you can’t come back and refile again. Because we have a double jeopardy issue. I’ve seen a lot of experienced attorneys, I’ve seen board certified attorneys, who do not properly prove up their claims in a hearing for an enforcement and they don’t plead it properly.

So just because somebody on the other side is a reputable attorney, is board certified, has been practicing for however long, make sure they did what they were supposed to do. Did they include everything they had to in their pleadings? Did they prove everything they had to in the hearing? Did they put everything they had to in the order? If they don’t and they send it to you to review for the form, don’t help them out. Don’t put it in there.

So, hopefully this podcast gives everybody a little bit of guidance for any enforcement you need to file in the future on this issue. And check back for our next future episodes for more helpful legal advice. And if you could do us a favor, go take a minute and leave us a five star review if you’re enjoying this podcast it will help more people find us. And that’s all we’ve got today. Thanks for joining me, Carrie.

Carrie: Thanks.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at

Subscribe to the Podcast

Follow Us


This field is for validation purposes and should be left unchanged.