Sometimes, despite a court order, people do not do what they are supposed to do. In relation to child possession and access, violation of the court’s order can have huge consequences. What do you do when your co-parent is not following the possession schedule laid out in your final order regarding your possession time of your child? The legal channel for addressing these violations of the court’s order is through an enforcement action.
What kind of scenario might you be in such that you want to bring an enforcement action relating to possession and access of your child? The most common one is where your co-parent denies you possession of your child during your designated possession times. All orders designate when a parent has possession of the child, starting and ending times for possession, exchange locations, etc. Your legal solution is to file an enforcement action.
- Motion for Enforcement
- Contents of Motion for Enforcement
In an enforcement action, the party seeking to enforce the court’s order and alleging that the other party has violated it is called “the movant”. The movant files a Motion for Enforcement with the court that has continuing and exclusive jurisdiction over the case — that is, the court that made the order which the movant is seeking to enforce. The Texas Family Code is very specific about what the Motion for Enforcement must contain. The motion must contain four things. First, it must identify the provision of the order that your co-parent has violated which you are seeking to enforce. Second, it must state the date, time, place, and manner of each time “the respondent” (your co-parent) did not comply with the order. Third, it must state the relief that you are requesting. Fourth, it must contain your signature or your attorney’s signature.
- Detailed Allegation of Violation
These rules mean that your motion must be very specific, accurate, and detailed. For example, your co-parent denied you access to your child on January 15th even though that was a date designated in your order as your possession time. It would be incorrect to put this in your motion: “Co-parent is keeping my child from me in violation of the final order.” Instead, you must be specific and include something like the following in your motion: “On January 15th, at 6:00 p.m., Co-parent failed to meet you at Jack’s Coffee Shop on 15th street (the designated child possession exchange place as determined in provision 13k of the Final Order). Co-parent texted me on January 14th at 3:02 p.m. that Co-parent would not be exchanging the child on the 15th in violation of provision 13k of the Final Order.” This specificity is imperative in an enforcement action. Courts commonly find a motion deficient for this lack of detail.
- Relief Requested
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 violated the order and prevented you from exercising your possession time, you could include it in the motion as a separate violation for which they could be punished.
It is important to remember that you 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 they 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 your co-parent would be responsible for any costs you 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.
- Co-Parent’s Response to Motion
After the motion is filed and served on your co-parent, it is important to remember that your co-parent will likely file an answer in which they deny that they have violated the order as you say they have. In their answer, your co-parent might do a number of things, including raise an affirmative defense. The most common of these affirmative defenses in an enforcement for possession and access are that you, the movant, voluntarily relinquished actual possession and control of the child during the period of the alleged interference. This just means that they are protecting themselves from the violation that you have accused them of and saying that you chose to give up your possession time rather than your co-parent kept your child from you. Another common affirmative defense to be aware of is that your co-parent was involuntarily unable to comply with the other of possession or access. This defense applies only when your co-parent was genuinely unable to make your child comply with the possession order, but it does not apply if your co-parent actively discourages or impedes your child from complying with the order or passively fails to insist that the child comply with the order. We often see a common example of this affirmative defense: it is your possession weekend, 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. 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.
- 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 your co-parent is not following the possession and access schedule laid out in your order. If you cannot address the issue with them directly, you might be forced to file a Motion for Enforcement.
To discuss the process of an enforcement action and protect your right to possession and access of your child, consult with one of our skilled advocates at Hunt Law Firm today.