The Holiday season is upon us and this is a very stressful time that comes with mixed blessings in my business. First, divorce filings slow down, court hearing dates are harder to get since the Judge, the Court staff, and even attorneys are taking time off for family, but if you do have a court date schedule, you are much more likely to get your day in court. On the other hand, parents that cannot get along, no matter the reason, tend to make it worse during the holidays. No where is this more evident than in child possession orders.
It is a Class B Misdemeanor in the State of Texas to ignore or violate a Court Order, punishable by up to 180 days in jail and a fine of up to $500.00 per each occurrence.
During the holidays, contempt of child possession/custody orders is common. In a typical situation, the parent-conservator with primary custody (sometimes called the Custodial Parent or CP) does not want the other parent-conservator (the Non-Custodial Parent or NCP) to have possession of or visitation with the child or simply has other plans that the CP thinks are more important.
First and foremost it is important to understand that child possession and child support are related but they are never inter-dependent. In other words, if NCP does not pay child support, that does not give CP the right to deny visitation and vice-versa. If either parent violates the Court’s Orders, the other party can file a Motion for Contempt and Enforcement with the Court and as I have said before, the Enforcement Action is most likely going to be heard by the same Judge who signed the order that is being ignored, so as you can imagine, this is not a fun matter for the parent who has to explain to a Judge why that parent ignored they Judge. By the way – “I feel as though . . . .” is not a good reason and it is not even evidence. I simply cannot count the number of times I have presented a Motion for Enforcement of Possession to a Court and had the CP (usually mom) say something like “Judge ,I don’t feel like my child is safe around his girlfriend.” or some similar comment. Mom’s have that mother’s intuition which can be valuable in many circumstances, but it has no evidentiary value in court. One of my favorite sayings is “Take your feelings to the bedroom, your beliefs to church and your opinions to the voting booth because these things have no place in a courtroom.”
It is important to note, that each and every occurrence or time visitation is denied or each month child support is not paid is a violation. Let’s put that into perspective – if the NCP is supposed to have visitation with the kids beginning when school is released for the Thanksgiving Holiday and ending the night before school resumes after the Thanksgiving Holiday, and the child is out of school for the entire week (released Friday and go back a week from Monday) then if the CP denies visitation for the holiday it is not one contempt, it is nine violations because it is nine days. However, if you are the NCP, you have to try to exercise your visitation every day or you cannot show there was an actual violation. Read more here http://www.planoattorney.net/blog/fathers-rights-are-free-if-you-try-2016-04-567
While the blog about father’s rights just mentioned was aimed at men, it applies to any NCP. If CP says don’t bother. Bother! Show up, ask for the kids and do not accept CP saying he/she will not allow visitation, make him/her actually deny the visitation. Make CP choose between following court orders or ignoring a Judge’s direct order. That choice cannot be made unless the NCP puts a little effort into the situation and shows up at the appointed place and knocks on the door. Remember, a Judge will not enforce a possession order unless you show you care enough to try. Child support is a little unique in that the order for the NCP to pay is clear, specific and requires no action by the CP. As such, the Judge will care if the parent entitled to receive child support just asks.
Keep records/document everything.
While expecting the Judge to use the full force of the law the first time the other conservator violates the orders may be a little too much to ask, the Judge has discretion to sanction a party violating court orders in a manner the Judge deems reasonable so long as the punishment is within the limitations of not more than 180 days in jail and a fine of not more than $500 each offense. This is in addition to attorneys fees. Remember in the context of the example above, denying the other party possession during Thanksgiving can be nine separate contempt violations and although it is extremely rare, a Judge has the authority to smack a recalcitrant parent for each and every contempt, so ask yourself, is keeping the kids for Thanksgiving so they can see your family coming into town worth $4,500 in fines and 4 years in county jail? Yes, extreme but I hope to have made my point – don’t do it.
Generally speaking (and keep in mind, your case is unique) the Judge´s reaction to the offending party´s contempt is based on two primary factors: (1) the other parent´s actions leading up to the contempt as well as that party´s reactions after the fact; and (2) the offending party´s ability to comply with the Orders in question. T
I have created a form for clients to use. I call it a Contempt Log. It is convenient way to track contempt for visitation and make notes that will be important to your case and can be found here:Contempt Log