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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After a final order is entered in a divorce or child custody case, there may be reasons down the road that one party or the other wishes to modify the order.  The Texas Family Code provides four grounds for modifying a child custody order:

  1. The parties have agreed to the terms of the modification and the court finds it is in the best interests of the child;
  2. A child 12 years old or older expresses to the court in chambers who the child would prefer to be the primary parent and the court finds it is in the best interests of the child;
  3. The primary parent has voluntarily relinquished primary care and possession of the child to another person for at least six months and the court finds it is in the best interests of the child; or
  4. The circumstances of the child, a parent, or another party affected by the order have materially and substantially changed since the earlier of the order was rendered or the settlement agreement on which the order was based was signed, and the court finds it is in the child’s best interests.

As you can see, all of the grounds require a finding by the court that the modification is in the best interests of the child.   There are a variety of factors courts consider in determining best interests.  In my experience, when the modification is based on the agreement of the parties, the court typically approves the agreement based on the parties’ representations that it is in the child’s best interest.  The court has to dig deeper into this inquiry when the parents are do not agree about a modification.

The standard for modifying a custody order is higher if a conservator wishes to flip who has primary custody (change the conservator who has the exclusive right to designate the primary residence) within one year of the prior order.  In that case, the party requesting the change must file an affidavit showing that the child’s present environment may endanger the child’s physical health or emotional development.  If the court does not believe the affidavit meets the burden, the court can dismiss the modification without ever holding a hearing.  This rule exists to try and keep parties from constantly going back to court.

In order to determine whether or not your specific circumstances would warrant a change to your child custody order, speak with an experienced family law attorney.

CPS

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Generally, a suit to modify the parent-child relationship can be brought at any time as long as a prior order is in effect.  However, if one party seeks to change the primary conservator within one year of the prior order, that party carries an additional burden.

Under the Texas Family Code, a party seeking to change the primary conservator within one year must file an affidavit in support of the change.  The affidavit must show one of the following:  (1) the primary conservator is seeking or consenting to the modification and the modification is in the child’s best interest; (2) the primary conservator has voluntarily relinquished primary care of the child for at least six months and the modification is in the child’s best interest; or (3) the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development.

This additional burden is designed to keep people from running back to the courthouse constantly to change custody arrangements.  After a year has past, the affidavit is not necessary and either party can file for any reason or no reason at all.

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In many situations, it is not necessary to obtain a new court order if the parties are getting along and agreeing on things.  For example, if the parties agree to change one party’s visitation from Wednesday to Thursday, there is usually no need to have a formal modification.  However, when it comes to child support, it is critical to have a court-ordered modification if you make an agreed change.

I have seen several instances where one party stopped paying child support because the children started living primarily with that parent.  Even if the other party is in agreement and has no intention of enforcing the child support order, it is very dangerous not to change the order.  As far as the state is concerned, you are continuing to accrue an arrearage.

Having an arrearage on the books with the state can be problematic for several reasons.  First, the state can report your arrearage to the federal government, who may take your tax return and apply it to the arrearage.  Next, the arrearage can be reported to credit agencies, negatively affecting your credit.  Finally, the state may start an enforcement action against you in an attempt to collect the arrearage.

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Child Support

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