What do you do when you are the respondent in an enforcement action relating to possession and access?
- What is an Enforcement Action?
An enforcement action is filed when one co-parent (the movant) alleges in a Motion for Enforcement that the other parent (the respondent) has violated the existing court order relating to possession and access of a child. Possession and access is the actual physical possession of the child. A final order has a possession schedule (“possession order”) that lays out the dates, times, overnights, exchange locations, etc. that co-parents are ordered to follow as they navigate sharing possession of their child with a co-parent.
Sometimes, a co-parent might believe that their co-parent is violating the court’s possession order by keeping the child from the other parent or interfering with the co-parent’s possession time. The legal channel by which the aggrieved parent might choose to address this issue is by filing a Motion for Enforcement. The movant will file their motion in the court that has continuing and exclusive jurisdiction over the case — that is, the court that made the existing final order. The movant will have to personally serve you with the motion so that you become aware of the violations that they are alleging. The first thing you should do after being served is calendar the date of the hearing and make sure that you show up for the hearing. If it is possible, speak with an attorney before the hearing and then you can proceed with filing an Answer that best protects you (as discussed below).
The Motion for Enforcement must adhere to a few specific technical rules; otherwise, the court will likely find that the motion is deficient.
- Contempt and Other Relief
Why is this level of specificity required in the motion? The reason is that motions for enforcement can request that the court hold the violating party in contempt for violating the order of possession or access. There are two types of contempt: civil contempt and criminal contempt. For civil contempt, the motion can ask the court to confine the violator to county jail and require them to pay a fine until they comply with the court’s order. For criminal contempt, the motion can ask the court to (1) incarcerate the violator in county jail for up to six months for each act of contempt and (2) order the violator to pay a fine of up to $500 for each act of contempt. This means that for each and every time your co-parent alleges that you violated the order and prevented them from exercising their possession time, you could be punished.
It is important to remember that your co-parent, the movant, can also request other relief in addition to contempt. A few examples include the following: the motion can ask the court to suspend the violator’s commitment to jail and place them instead on community supervision. The motion can ask the court to award the movant additional periods of possession. The motion can ask the court to order the violator to execute a bond or post security if the court finds that you have denied possession of or access to the child on two or more occasions. The violator is required to pay this bond and does not get the money back unless they comply with the final order regarding possession and access. The motion can also ask the court to award reasonable attorney’s fees and all court costs — meaning that you would be responsible for any costs your co-parent incurred in hiring an attorney, drafting the motion, filing it, appearing for a hearing, etc. Also, if the court finds that the violator did not follow the order regarding possession and access of the child, the court will award the movant attorney’s fees and costs.
All of this possible relief that could be awarded to your co-parent makes it imperative that you defend yourself against the allegations in the motion for enforcement.
- I have been served with a Motion for Enforcement for possession and access – what do I do now?
After you have been served with the Motion for Enforcement, you will want to respond to the motion. You do this by filing an “Answer” in which you either deny that you have violated the order as your co-parent alleges or you assert an affirmative defense. Let’s look at both of these scenarios.
- Denial
If you have not denied you co-parent their designated possession time or interfered with their possession time, you are entitled to state so in your answer. This means that you would “deny” all of the allegations in your co-parent’s Motion for Enforcement that state that you violated the order in some way. For example, your co-parent might incorrectly allege that you denied them their possession time on January 15th, 2023. In fact, January 15, 2023 was your designated possession time, you and your child were visiting your family in the Dallas area, and you had informed your co-parent that you and your child would be doing so. Because you know that this is what really happened and your co-parent’s allegation is incorrect, you are entitled to deny that allegation.
- Affirmative Defenses
You can raise a number of affirmative defenses in your answer to protect yourself. In an enforcement action for possession and access, there are a number of common affirmative defenses. You can assert that your co-parent voluntarily relinquished actual possession and control of the child during the period of the alleged interference. In asserting this defense, you are saying that your co-parent chose to give up their possession time rather than you kept your child from them. You may also assert that you were involuntarily unable to comply with the other of possession or access. This defense applies only when you were genuinely unable to make your child comply with the possession order, but it does not apply if you actively discouraged or impeded your child from complying with the order or passively failed to insist that the child comply with the order. We often see a common example of this affirmative defense: it is your weekend period of possession and you arrive at your co-parent’s house to pick up your 15 year-old daughter. Your daughter refused to leave your co-parent’s home and walk to your car. In such a case, your co-parent could raise this defense as the child cannot be physically forced out of the home. But, if your co-parent persuaded your daughter not to leave the home for your possession time or did not tell/encourage your daughter to leave the home for your possession time, then they could not use this defense.
Other affirmative defenses, besides those explained here, can also be raised, but these are some of the most common ones.
It is important to know about two technical rules regarding your response to the Motion for Enforcement. The first is the deadline by which you need to respond. An answer to a Motion for Enforcement can be filed at any time before the hearing. The second is the consequence of not responding at all to the Motion for Enforcement. While you do not “admit” all of the allegations in your co-parent’s Motion for Enforcement by not fling an answer, you might be subject to a default judgment. The movant must offer proof of their allegations, but nonetheless could seek to enter a default judgment against you. This essentially means that your co-parent could proceed in the case without you and you could even be found to have violated the order without defending yourself. Therefore, you want to make sure that you file an answer and respond to the allegations in the Motion for Enforcement by either denying the allegations or asserting an affirmative defense to protect yourself.
Again, it is imperative that you show up for the hearing on the Motion for Enforcement. Texas Law Help is an excellent resource for finding examples of Answers you could file in response to a Motion for Enforcement.
- After the Hearing
After the court holds a hearing on the Motion for Enforcement, the court will render a written order. The order will state the relief which the court has granted, including but not limited to: contempt relief, additional periods of possession of the child for the movant, a security bond when possession or access to the child has been denied on two or more occasions, and attorney’s fees.
It can be daunting to figure out what to do when you are served with a motion for enforcement relating to possession and access, especially when your co-parent seeks contempt as part of their relief from the court. To discuss the process of an enforcement action and protect your right to possession and access of your child while defending yourself, consult with one of our knowledgeable and skilled Texas attorneys serving the Greater Houston area.