Enforcement of a Visitation / Possession and Access Order
A parent “decides” that the child, usually a teen, “has decided” that the child doesn’t want to go on visitation.
Unfortunately, it is all too common that a parent “decides” that their child does not “want to go on visitation” with the other parent. This may very well be the beginning or a part of a continual parental alienation course of conduct. It is very unusual for a child of any age not to want to see and spend time with a parent. Lots of excuses are given – especially with teens. Then the parent who has the right of possession shows up to get their child only to find nobody home. We have had a parent enroll their child in every extracurricular activity they could enroll the child in – all to make the other parent “interfere” with the activity. We have seen children involved in multiple football programs, multiple volleyball programs, this, that and the other. We have seen a parent withdraw a child in the middle of the day from school so the other parent could not take possession at the end of the school day. We have seen a parent schedule the “family vacation” for a cruise during the other parent’s summer possession only to tell the child – “we really wish you could go with us, but your Dad will not let you.” Really? Then why did you schedule the cruise during the father’s period of summer possession?
The denial of court ordered visitation (possession and access) by one parent against the other is a direct violation of a court order subjecting the violating parent to fines, jail and payment of attorney’s fees. There are attorneys out there that will tell you that there is no way someone can be held in contempt, jailed and fined for violating a visitation order. Not true. We have successfully jailed an offending parent. We have caused a parent to incur substantial fines. We have caused a change of the primary designation from the offending parent to the other parent. If you are being denied possession and access to your child, call us. We will take a look at your order and give you an honest assessment of your case. Denial of possession by a parent against the other is alienation of the parent.
Here are a few things you need to keep in mind when trying to enforce your possession order:
1. You must have an order that unequivocally states what your possession is. It must spell out the who, what, when and where. If your possession begins at a specific exchange point, an address should be included. Here is an example,
- IT IS ORDERED that the parents shall meet for all exchanges of the children at Buc-ees at 204 IH-45, Madisonville, Texas 77864, which is at a point midway between their respective residences.
In that example, the parents live a great distance from each other and are meeting half-way between their respective residences. Note the specific place is set out in the order. The more common language is the following example:
- Surrender of Child by FATHER — FATHER is ORDERED to surrender the child to MOTHER at the beginning of each period of MOTHER’s possession at the residence of FATHER.
In this example, the father is the primary, the person with the right to designate the residence of the child, and he is ordered to surrender the child at his residence at the beginning of each period of the mother’s possession. If he failed to do this, he would be subject to contempt.
Take a look at an order and you will see that there are two issues of contempt that occurs each time a parent denies possession. The first is the “failure to surrender the child.” The party is ordered to surrender the child and didn’t do so. The second issue of contempt is denial of possession – the parent who had the right of possession for a weekend, for example, was denied possession for that weekend. So each time a parent is denied possession, there are two issues of contempt (1) failure to surrender and (2) denial of possession. Each is distinct and stands on its own. Most attorneys don’t know this. They use a generic form and do not recognize that there are two basis for contempt each time a parent denies possession. Our Motions to Enforce visitation are very specifically drafted.
2. You must do what the order says to do. It does not matter that the primary called and said they wouldn’t be there. It does not matter that you know that the primary and child will not be at the exchange point. You must go to the exchange point at the appointed time – at the McDonalds, at the parents home, whatever. If that is 6:00 p.m. on the third Friday of the month at the Mother’s residence, you must go there and you must document it. In one of our cases, the exchange point was at the A&W Root beer stand in Sulphur Springs, Texas. Our client drove to that A&W on the first, third and fifth weekend of each month knowing the mother would not be there. This is a crucial element to contempt. This client’s motion for enforcement was successful.
3. You must document your efforts to pick up and take possession of your child. Sure, testimony is sufficient to establish that you went to the exchange point but some kind of documentation is helpful. Keep a calendar of each time you attempt to take possession of your child. The calendar is admissible into evidence. If the exchange point is at a Starbucks, as in one of our cases, buy a cup of coffee and keep the receipt – pin it to your calendar. You could also take a picture of the front door of the other parent’s home – almost all camera’s will now use GPS and the meta data will show your location and the time. What we are trying to do is developed evidence that you were present to pick up your child at the exchange point.
4. The motion must be specifically drafted. It must set out exactly what should be done, when it was supposed to be done and where it should be done. A generic form, as many attorneys use, is insufficient for a finding of contempt on possession. In addition, the language of the order sought to be enforced must be repeated in the motion and the order should be attached to the motion. The family code says one or the other, but we do both. There can be no issue associated with the notice as contained in the motion to enforce. It is very technical and you need a lawyer that knows what should be done. The following is an example involving Thursday night possession from one of our motions:
- VIOLATION 1 – Surrender of Child. On March 25, 2010 – a Thursday and school day, MOTHER failed to surrender the child to FATHER for his Thursday possession of his child, CHILD, commencing at the time school is regularly dismissed by removing the child from his school (———– Intermediate School) one hour prior to the child’s dismissal from school. At page 13 of the Agreed Order in Suit to Modify Parent-Child Relationship it states “if a period of possession by FATHER begins at the time the child’s school is regularly dismissed, MOTHER is ordered to surrender the child to FATHER at the beginning of each such period of possession at the school in which the child is enrolled.” MOTHER failed to surrender the child in violation of the Court’s order by removing the child from the child’s school in which he is enrolled one hour prior to the child’s dismissal from school.
- VIOLATION 2 – Had Possession. On March 25, 2010 – a Thursday, MOTHER took possession and had possession of CHILD in violation of the Court’s order. The Agreed Order in Suit to Modify Parent Child Relationship states at page 16 “IT IS ORDERED that neither conservator shall take possession of the child during the other conservator’s period of possession unless there is a prior written agreement signed by both conservators or in case of an emergency.” There was no written prior agreement, or agreement or emergency. MOTHER removed CHILD from the school in which he was enrolled one hour prior to its dismissal. She then had possession of CHILD in violation of FATHER’s right of possession pursuant to the court order.
Notice that this language from a contempt motion sets up two contempt allegations – failure to surrender the child and denial of possession. Ultimately, this particular motion set up 24 different contempt allegations. The rest of the story . . . because the order upon which our motion for enforcement rested was so poorly written by a previous attorney (an attorney not a member of our firm) we were unable to hold the Mother in contempt on 23 of the 24 counts. BUT . . . we did hold her in contempt on one account which ultimately resulted in a change of custody to the Father. Think about this . . . although the court could not hold the Mother in contempt on 23 counts, the Court did hear the evidence associated with those 23 counts. After hearing the evidence and holding the Mother in contempt on one count the court changed the primary designation and put in place some pretty stringent requirements on Mother’s possession for the future, i.e., counseling, parenting classes and supervised possession.
A little possession enforcement law:
There are two Texas cases involving possession contempt – Ex Parte Rosser, 889 S.W. 2d 282 (Tex.App.-Houston [14thDist.] 1995, orig proceedings) and Ex Parte Morgan, 886 S.W. 2d 829 (Tex. App.-Amarillo 1994, orig. proceeding.).
- Rosser states that the only defense to a failure to surrender a child under a Court order is that the parent in possession cannot physically make the child go. The parent has the burden to conclusively prove involuntary inability to make the child go. In this case, Father was the primary and it was Mother who was seeking her summer possession. At trial, the child took the stand and testified that it was her decision and fault that she didn’t go on visitation and that her Father had nothing to do with it, or had sought in anyway to prevent her. The Father was still held in contempt. Under Rosser, the bag needs to be packed and the child needs to be put outside with them.
- In Morgan the Mother did nothing to encourage the children to go or to have the children ready for the Father’s summer possession. The Father provided multiple opportunities for the Mother to obey the Court order. When the Father tried to pick up the children, they refused to go. Mother did nothing to impede the Father’s possession, she was passive, but nor did she take any active role in encouraging the children to go with their Father. The Court stated “under this record, Morgan’s passivity was not punishable by contempt.” Note, in the Morgan case this ruling was contained in dicta (extraneous language in an opinion outside the subject, i.e., irrelevant) and is, thus, not binding law.
Our judges. Across North Texas, court’s take possession and access orders very very seriously – especially, in smaller counties. There are judges in Collin County, Denton County, Dallas County, etc. that will not hesitate to place a parent in jail for disobedience of a possession and access order. Punishment for a first offender will range from 3 days, to a week and 30 days is not uncommon. Fines are imposed – it is not unusual to see $500.00 per incident. An award of attorney’s fees are mandatory.
Enforcement of a possession or visitation order is technical and complex. If you have been denied possession and access to your child, call us for a free consultation at 214-369-7100.