A good portion my practice in Dallas and Collin county is enforcement of the court's orders as they relate to child support and visitation of children. These occur in situations where the Court has already entered orders regarding children, for instance a Final Decree of Divorce, an Order Modifying Prior Order of the Court, or Order in Suit Affecting the Parent-Child Relationship.
Once the court enters those orders, they expect you to follow them. If you do not, the aggrieved (pissed off) parent, can sue the other parent for contempt of court.
A suit in Texas for enforcement of a child support order is relatively simple process. An attorney must simply prove that a set amount was payable on a set date at a set place and time, and that those payment were not made. For example, Dad is ordered to pay $500 per month beginning on June 1, 2007 and each first of the month thereafter to the disbursement unit in San Antonio Texas, address 1234 Main Street. If June 2008 rolls around and Dad has not made those payments it is relatively simple to prove that he is in contempt. He knew when he was supposed to pay, how much to pay, and where to pay it. If he does not do it, he is in contempt.
Enforcement of visitation in Texas can be that simple as well, but it rarely ever is. The reason is that the ticked off parent (parent not receiving their visitation) doesn't do what they are supposed to do. Let me explain by example:
Father is awarded custody of the child. He is ordered to provide the child to the mother for her visitation on the first, third and Friday of each month at his residence at 6:00 p.m. Simple enough, correct? Let's add these facts - mom and dad do not get along (i know that is far fetched, but work with me here) and dad makes mom's visits as difficult as possible. Mom calls dad on the first Friday at about 4:00 p.m. to confirm she is picking up the child (which she is not required to do, but does because it takes her 45 minutes through traffic to get to dad's house) and dad says don't bother showing up because the child and I won't be there. The mom makes a note of this and decides to forego the traffic and mess. She'll wait until the next visitation on the third Friday. Same thing happens on third Friday, so mom makes a note of it. She decides if he does it again she is going to sue his pants off. Fifth Friday comes and dad does same thing. Mom decides to sue for enforcement or contempt for the father violating the court's order.
Ruling? Father is not in contempt! WHAT?!! He didn't provide the child, how can he not be in contempt? He is not in contempt because MOM failed to follow the Court's order too! For mom to hold dad in contempt, she needs to appear on the first, third and fifth Friday of each month at dad's house at 6:00 p.m., regardless of whether the child is there or not. That is what the court order said and that is what mother must do. If she follows the court's order, and then dad does not, dad is in contempt.
While my example references a common situation, this same logic applies to other areas of decrees or orders of the court. FOLLOW THE ORDER, NOT WHAT YOUR EX-SPOUSE OR MOM OR DAD OF YOUR CHILD TELLS YOU. If you are unclear how to follow your order or what to do, call a lawyer. Most lawyers will offer free consultations or charge a small fee to speak with them. I do divorces in Plano, Frisco, McKinney (Collin County), and in Dallas, Richardson, Carrollton (Dallas County). I also handle modifications and enforcements of orders.
Moral of the story: If you follow the decree, and ignore what people tell you, you should be well on your way to holding the other parent's feet to the fire!
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
Wednesday, June 04, 2008
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41 comments:
What if the non-custodial parent sends someone else in their place to pick up the children? I made sure in my divorce decree that it did not state that he had the right to do so, whereas in someone elses decree that I have seen, it plainly states that each parent has the right to designate someone else to pick up the child. So will I be in contempt if I do not let my children go with anyone other than my ex-husband? By the way, awesome Blog! You provide a lot of great info!! thanks-Tiffany
Tiffany, thank you for the compliments. You have an interesting questions. The answer could possible be the subject of another post.
Let me start by saying that I cannot advise you how to act in this matter. I would suggest that you contact a local attorney and run this by them as well for a second opinion.
Part 1 - If the designation of competent adult section was removed from your Divorce Decree (or Order), then technically only the father should be allowed to pick up the children. If you deny the visitation because somebody else comes to pick up the child, I do not think that you can be held in contempt. A judge may disagree, so be careful here.
Part 2 - If you know the person who is picking up the children (i.e. his mother) and you have no concern over their reliability, then perhaps you should allow the visitation. While you may not be held in contempt, you could get yourself in some hot water and suffer some kind of punishment from the Court.
If the person picking up the children is a stranger, of questionable reliability, or just someone you do not trust, I believe that you are within your right to deny them picking up the child. However, you may consider allowing the father to modify his pick up that day to a time when HE can pick up the child.
One thing that is really important to understand here is that a strict construction of a divorce decree or order in Texas as far as visitation is concerned can ultimately lead to grounds to have the order or decree modified to something you may not like. Bottom line, abide by the decree, but use some flexibility occasionally! And keep records!
Good luck.
This is a sad case. The father has visitation rights in bowie county but becasue of a domestic violence situation in 2003 the father was restricted from seeing the child for 6 years. A couple of mishaps with probation and 2 more years were added. In the meantime the mother has wound up in gainsville womens facility for felony theft for an undertimed time. The girls mother has the child. Is there any reason the the childs father could not get custody or visitation at least since the mother is in jail and has been since August of 2008? He is now in a situation where he is paying his child support along with back child support and trying to reinstate himself as a responsible person in society. He does not have the money for a court battle and neither do his parents. In the interest of the child how should he proceed.
Hi Chris,
Tomorrow I will file an 'Answer to Divorce' with the Dallas Court.
Can you tell me:
May I may file a Counter-petition at a later date, if I choose?
Or must I file a Counter-petition at the same time as the Answer?
Thank you very much. (BTW, I enjoy your blog.)
J
I am currently involved with a re-defined custody decree. After fighting for more rights as the father, and our lawyer, several thousands in, no help, but how do you PROVE you show up and they are in contepmt? The mom has moved, no address, no phone, and won't pay her portion of medicial bills. Do I call the county police to fill out a report? Please give me some sortof help other than smoke screens.
Will
you do not have to file both at the same time.
Jolene, there are only two ways that it can go. Either the father can reach an agreement with the grandparent that has the child with regard to visitation or custody and have those agreements enter with the court...or he would have to file a lawsuit and sue for custody or visitation.
Anonymous, I am not following your question. You ask how you prove that you show up to hold someone in contempt, but then state that you do not know where she is.
Usually your testimony alone is sufficient to prove that. It sound like you may need to also try and hold her in contempt for not giving you her new address. Check your order, there is probably language in there regarding her requirement to notify you of an address change.
Good luck.
I have a question. My ex wife took off with my daughter over ten years ago. She did not tell me she was leaving and gave me no forwarding address. She stil filed on me for contempt for failure to pay child support. Judge said visitation and support two different things. I couldnt file on her because i couldnt get her served I didnt know where she was. Attorney Generals office said they didnt have to give me her address. Her new husband was convicted of a sex offender crime with a minor and was not supposed to be allowed back in house with my child. Mother never notified me or the state of Texas courts as to his conviction. I finally found my daughter 10 years later and this is how i found out about his conviction. My daughter is now living with me and mother was on the run with husband until he was finally caught. Am I still responsible for back child support whe my daughter should have been returned to me upon his conviction the first time? Please help.
Do you know if any special consideration is given to members of the US military when dealing with geographical restrictions in Texas? My brother is in the Navy and has been stationed in Washington state. His wife has three children who are geographically restricted to Harris County, Texas. She is attempting to have the restriction lifted. Is the fact that she is married a member of the US military at all relevant to her argument?
What exactly are children's rights in reference to visitation choices once they turn 17?
I have never been able to get informed correctly on this, and I would appreciate if you could possibly answer this.
Miranda
I have a question about how long supervised visitation can last? My ex (this is documented in our decree) has three birth certificates from three different Latin American countries and has threatened to kidnap our child. Also in the decree it states that he has to keep seeing his counselor to address issues (the particular issues were not stated in the decree). Is there anything I can do to keep supervised visitation and for how long (how many years) can it last? Right now it only lasts until age 2. I found an old letter in which my ex stated he would agree to supervised visitation until age 10...since I found it after my decree does that not help my case? Please help as my ex does have many issues and I do not want to ever lose my child.
My question is about SUPERVISED VISITATION. Can it be extended and for how long (how many years)? In my decree it states (Ex has three different birth certificates from three different countries, he has threatened to abduct and also tried to obtain child's birth certificate...in addition ex has to continue counseling sessions [although specific issues not in decree]). At the age of 2 ex gets unspervised visitation. Is there anyway to extend supervised visitation? Also, an old letter he wrote agreeing to supervised visitation until age 10 was found after the final decree....can that letter be used in court? What proof do I need of continued threats if they are always verbal and with no other witnesses other than our toddler? HELP!!!
Miranda, technically the court maintains jurisdiction over a child until they turn 18. As far as a child's rights with regard to visitation, some courts say that a child that age should not be forced to go if they do not want to. Other courts say that the parent with custody should force the child to go.
There is no hard an fast answer to this question, sorry.
Good luck.
Anonymous, unfortunately I think that you are bound for the back child support as long as the child was not residing with you.
That is a parental "duty" to support the child. No other factors are really relevant, it is a duty you have as a parent. If the child was not with you then your support was in the form of child support.
Keep in mind that I am not a judge, and my answer is not the final word on this. If you would like to challenge the back child support, file a lawsuit and challenge it.
If the mother is required to pay you support now, and is not doing so, perhaps you could begin offsetting your arrearages.
Good luck.
Ssotwelltx, it is tough to comment on these cases without all the underlying facts of the father's relationship with the kids, etc...
However, I will answer just the question posed. There is no special consideration that I know of for members of the military. Remember what the purpose of the residency restriction is...to promote frequent contact between the non-custodial parent and the child.
Technically, the only two people of concern are the child and the father.
Read my other comments as well, as there are other similar scenarios in them.
Finally, do not rely on just my words...remember that I am not a judge, and a judge may have a totally different opinion than i do. Go talk to a local attorney and get their opinion.
Good luck.
Thanks Chris for your responsed. In regards to my question...so even though he is on probation he could get that order ammended so that he can see his child?
Anonymous, yes supervised access can be extended for the child's entire childhood if the court sees fit to do so. I doubt that letter is admissible as evidence, and even if it was, I don't know that it help you as he can now say that he disagrees with that letter.
If he is continuing to threaten you then tell the court that he is threatening you when you go to the court. That is evidence. The court can put as much weight as they want on that testimony. Perhaps you can figure a way to record those threats on a recorder.
In any case, you need to talk to a local lawyer if you are considering this lawsuit. They can better help you with the specifics of the evidence you have.
Good luck.
Ok...my girls are 12-15-and son 16.I have read and understand what is said to do....I kept times, dates, events, conversations. I have never missed a visitation. He was found to have lied on a court document he signed under oath. collected government assistance when kids were not with him till this day....Its been a year this July 17 since my girls came to stay...started off with a temporary order that was only to last two weeks then shift to general visitation...however...minus a month in november and 2 weeks in may...i have had my girls....my son is with his grandmother (ex's mom) through all this the admitting of me having them and doing for them lalalalala....the judge gave him primary....since our final hearing i have had my girls, am ordered to pay child support and medical insurance. Plus they live here....my son at his gramdmothers. I do for him as much as i can...he makes no effort to call them unless "I" upset him....then the first thing he does is picks the girls up and tells them he is going by the court orders....doesn't let me speak to them and fills their head with nonsense....how can I stop this....my faith in the system is frail and time is wasted.
Was she having a bad day?
Chiela2003, I am sorry but i am not sure exactly what you are asking me. It is a little difficult to make sense of what you are telling me.
If you are saying that our ex has legal custody, but the kids live with you, then you need to file a motion to modify the prior order to get custody with who the children are truly with.
Good luck.
my ex never kept my kids from me until i met this man and decided to live with him...no crimminal history...then my ex totally hid them from be saying that our divorce decree didn't have a visitation agreement on it....in july i hired an attorney to see if we could change the order...he demanded i pay chid support or he wud not agree to any tmeporary orders so i did with the agreement that he wud have to show proof that his situation had changed and there was a reason for his petition..the temporary order gave me access from july 17 until august 1st then he was to have them...My girls since then live with me my son with his grandmother....i petitioned for modification with documentation to the tee....at the final hearing he lied under oath...his demand for discovery and what he said in court contadicted itself he admitted the kids were with me...
all i wanted was to keep them together...my son and girls in one place...they were with me anyways....minus my son
then we go to court....judge states kids are better off with him...he has had them...i had dates times dr notes school notes etc...showing he did not have them...
then orders child support and medical insurance from me which wasnt justifiable because he did not prove that his income has changed in any way! and my kids are still with me...since then too....he admiited to getting foodstamps when he did not have them....I mean what happened? what did she not see or hear?
Sounds like your problems started when you made another man the center of your focus...and now you are spazzing out for answers. I wonder what in your situation you're not being clear about because courts usually favor the mother. Perhaps your children are better off with your ex. Situation is sketchy.
Hi Chris, nice blog. I am from Dallas. My case is in Houston. Regarding enforcing electronic communication or rights of a parent at all times, what can I do to get my son's mother to start communicating with me in regards to my son. She completely ignores most of my emails about our son. I will be representing myself, so is it possible to obtain any sort of "compensation" by driving all the way to Houston to enforce my rights?
Thanks. Anthony
Anonymous, you will need a court with some teeth to be able to enforce electronic communication. When I say teeth I mean that there can be no doubt exactly what the mother is required to do and when she is to do it.
I definitely think the court would consider your expenses in having to force the mother to do what she should already be doing.
MILLION DOLLAR QUESTION HERE.
Please inform me on the correct procedure. How can I prove I was never served court documents from OAG or anyone else? I found out that I was the "default" parent when I had my wages garnished from my payroll check. Up until that point I didn't even know I had another child in Tarrant Co., much less getting served for that extra child. (Through me for a loop.Whew!) I wrote Tarrant Co. Court House 325th court to order the documents and it doesn't even have my address on there. I haven't lived at the address they have listed on the documents for over 10 years; even my credit file has ALL of my addresses throughout my life's history. I was never served x2 cases. I would like to know what is the appropriate steps.
By the way, I love your blog. (so helpful)I am probably going to need to hire an attorney; can you handle cases in Tarrant Co. or is that a court your not too familiar with? I will have to do a paternity and modification on my current child support cases. (two different cases)
My 5 1/2 year old daughter has visitation every wed. and sun. with her father. Each time she visits, he checks her "private parts" to see that they are clean, etc. I think it is inappropriate. Even the pediatrician agrees. He tries to use this to say she isn't clean and I'm not taking care of her. I think he is crazy and I want supervised visits. He wants to go back to court and get her every other weekend. I am really afraid for her to spend the night because I think he will continue with poor judgement.
Princess, you can attack those lawsuits with a bill of review if the orders are less than 4 years old. I don't do a lot of family law in Tarrant County, but I can give you a referral if you like.
Custodial parent fails to show up with kids at place and time set forth by decree, the other parent does show (to cover all his bases).... he takes her to court and she is found in contempt for this and other reasons. They go to mediation, per the judges order, now she continues to do the same thing with denial of visitation by "Oh, I didn't realize you had the kids this weekend" excuse. Is this grounds for moving primary custody to the father? (Texas)
Mr. Schmiedeke,
I've recently filed an enforcement pro se vs. my ex-spouse in Tarrant county for multiple violations including interference and denial of custody/visitation, failure to provide passports, failure to provide medical information and removal of children from the state for greater than 24hrs. (all of which are specifically defined and mandated in the Divorce decree as well as a Suit to Modify Possession). As this is considered criminal contempt (an affront to the jurisdiction and dignity of the court) as opposed to civil contempt, is there an reason (in your opinion) that Alternative Dispute Resolution should have been sought rather than a direct filing with the court? What sort of relief might typically be granted in such a case? Any other suggestions or comments you may have regarding this type of proceeding would be sincerely appreciated. Thank you.
What if a father does not pick up his child every 1,3, & 5 weekend of the month. And has not picked their child up since October 2008. Is there some where we can call to get full custody of the child?
Anonymous, you have to file a lawsuit to modify the order that gives the father visitation. That can only be decided by a judge and I assure you that you cannot simply make a phone call.
Contact a local lawyer, run the fact scenario by them and see if they can help.
Good luck.
That is disgusting and if your daughter has brought this to your attention it is probably because she feels uncomfortable. I would get with my daughters pediatrician pronto! If it makes you uncomfortable it is probably a red flag.
What happens when the NCP has been following all the steps when Denied Visitation and Can not afford to hire a lawyer to enforce a motion of contempt?? My ex has violated our visitation schedule on 5 differnt occations. Our divorce was final in Upton County where she resided. Then in a four month period of time moved to OK, Then to CO, then back to TX. She keeps moving and not only have i not had phone numbers, addresses ect, but my ex has missed or denied visistations for all my major holidays. I have still shown up to our aggreed meeting spot for visitaion after she said she would not be there just incase. I have also had my current spouse there for a witness. I think I have acase on not only contempt of visitation but for moving my child to three states in four months and not telling me or telling me real late and then not providing me phone numbers or addresses. Can I petition the court to appointment me a lawyer to file for contempt??
I love your blogs I have been following them for a long time. You have great information and its very helpful.
Anonymous, the court will not appoint you an attorney. They could appoint the mother an attorney if she is looking at jail time, but not you.
See if you can track down a lawyer that will try and collect their fees from her. If she is found in contempt chances are good that she will be required to pay your fees.
Good luck and thanks for reading.
although my husband picked up our daughter when he was supposed to, he either gets rid of her to go to his girlfriend's, play soccer, whatever. now, he went behind my back, got me to agree to let him have her a week -- then transported her to lousiana and left her with my parents (although we are estranged, i have never denied them the grandchildren). he left her there and was going to let them do a perm cosmetic procedure on her! i stoppped this by calling the lady that does it, but do i have the right to go get her (with the police, if i have to) since he 'secreted and hid' her, and did not give me notice if he could not keep her (or in his case, didn't want her). i am just livid that they did this behind my back and will not tolerate it. what can i do?? i don't want my dad (deep pockets) to try to sue me for grandparent rights, it's not necessary. but i also cannot tolerate him dumping her whenever. i could hear my dad on the other end of her phone yelling, 'just hand up on her, you belong to your dad this week . . .' my daughter was crying because he continues to put her in the middle. do i have the right to go get her?? he had rights to her, but they certainly do not!!! HELP!!
Suse, the father has the right to exercise visitation and to take the children where he likes on the visitation. The visitation is for him, however, some courts will allow a parent to leave kids with grandparents, etc...
The g-parents have about a slim and none chance of filing and maintaining a lawsuit over the children (assuming we are talking about Texas) unless there are other facts which show the kids may be in danger.
If you truly cannot take the visitation arrangement then I suggest you contact a lawyer and try and modify the visitation.
Good luck.
Custodial mom owes 50$ medical bills to non-custodial dad. Bills started accumulating in 2007. Mom refuses to pay dad. What are we to do? Went to court in the past regarding denial of visitaion and judge ordered us to settle. Mom was not held accountable for the denial, even with documented police reports. We were out close to 8k for nothing. Dad is not and has never been behind in any payments.
Custodial mom owes 50$ medical bills to non-custodial dad. Bills started accumulating in 2007. Mom refuses to pay dad. What are we to do? Went to court in the past regarding denial of visitaion and judge ordered us to settle. Mom was not held accountable for the denial, even with documented police reports. We were out close to 8k for nothing. Dad is not and has never been behind in any payments.
Hi I'm Mary and I have enjoyed reading this site for awhile now because it's so informative. My question is that on October 31, 2009 my son's mother brought his 8month old daughter over to him and resfused to tell him where to drop the baby off after the weekend because she doesn't want him to know where she lives. My son put child support on himself just to have visitation rights to his daughter. So long story short he wouldn't give the baby back until because he wanted to know where his child was residing and she refused to tell him. Well she went out and got an attorney and filed a writ of attachment against him and the coursts suspened his visitation rights. I know that wasn't a smart move not to give her the baby but she always threatens him with leaving the country with his child. So what appeal can he file to get his visitations back to his child. The mother told the courts that my son sells drugs for a living and that the baby was in danger which is a lie. I just didn't know that people can just lie and don't have to prove what they're saying against someone else when it comes to a child. This child is his life and there have been CPS cases against this mother but it seems as though the courts doesn't look at any of these things. Please give any feedback and thanks for listening.
Anonymous, you need to file an enforcement for the outstanding bills. That is enforceable by contempt. It is always best to be able to document your attempts to collect the $50.
Call a lawyer and schedule a consultation.
Good luck.
Anonymous, I think your son learned a valuable lesson that he must follow a court's order. If something needs to change in that order, then that has to be addressed in the Court, not on one party or the others sole judgment.
I suggest your son contact an attorney and schedule a consultation to help him resolve his visitation issues. It sounds by the tone of your post that your son did not have an attorney. If he did not, that is probably why the court did not hear his evidence.
I suggest he get an attorney and pursue his options.
Good luck.
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