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?

Modification

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.

Enforcement

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

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In Texas family law cases involving children, one parent is often ordered to pay child support to the other. For one reason or another, a parent may fall behind on child support payments. If you are the parent who has been ordered to pay child support, you may be wondering what can happen to you if you fall behind. In the alternative, if you are the parent receiving child support, you may be wondering what you can do about the other parent failing to pay. There are several potential ramifications if a parent fails to pay his or her child support obligation. Below are several ways a child support order may be enforced.

Contempt: A person can be held in either civil or criminal contempt for unpaid child support. In civil contempt cases, the court may order confinement in jail for up to six months and may issue a fine for each missed child support payment. A jail sentence must be served even if full payment is subsequently made. Criminal contempt cases entail an obligor being sentenced to jail until the individual complies with the court order. Typically, the order states the obligor is to pay a certain amount of money or pay all of the unpaid support.  Sometimes courts will issue a suspended commitment, meaning the jail sentence is suspended so long as the obligor makes all child support and arrearage payments going forward.  Courts can also put the obligor on probation for a period of time.

License Suspension: If a person fails to pay child support, his or her licenses may be suspended. This applies to a driver’s license, but it may also include hunting, fishing, and even processional licenses.

Passport Denial: A person may be denied a new or renewed passport if they fail to comply with a child support order.

Lottery Prizes: Although this one rarely occurs, a person’s lottery prizes can be intercepted and applied towards child support and dental and medical support arrears.

Liens: Many people do not realize child support arrears can cause a lien to be placed on a person’s property. A lien can be filed on a person’s property, bank accounts, retirement accounts, and even personal injury claims. It is important to note that a lien cannot be placed on a person’s homestead if it is exempt under the Texas Constitution or the Property Code. If a lien is improperly placed on your homestead property, contact an attorney to assist you with having the lien removed.

Tax Refunds:  The Attorney General will often intercept tax refunds from anyone with past due child support obligations.

It is important to stay on top of your child support obligation to prevent the above measures from being taken against you. If you have lost your job or had a change in employment and can no longer afford your current child support obligation, contact an attorney to assist you in having your child support amount lowered as soon as possible.  Remember, you can never modify child support going backward.  You can only modify it going forward.  If you are a parent who is to receive child support and the other parent has fallen behind, you can contact the Attorney General’s Office for assistance with an enforcement action. You can also contact an attorney to bring an enforcement action on your behalf. Often, private attorneys are able to bring a child support enforcement action much more swiftly than the Attorney General’s office. Regardless of your situation, The Draper Law Firm is here to assist you with various child support issues.

Blog Post by Sarah Marrone

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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.

jail

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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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