Proving Contempt of Child Custody Orders

Family, holidays, & custody

Child Visitation during the holidays

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

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

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2 Responses to “Proving Contempt of Child Custody Orders”

  1. Ellen Flores says:

    My ex-husband and I lived in Dallas when we got married, but I moved to McAllen to be closer to his family. We divorced there, so we had orders which allowed me to move back with our 3 kids. We agreed on terms such as visitation would be one time a month and that we would share transportation costs for this. Every month is specifically outlined regarding who is responsible for how much of the transportation, with one exception, which is December. Last December was the first year we were divorced, and since he didn’t want to cooperate planning their transportation, I drove them all myself, flew back to Dallas so that I wouldn’t be alone on Christmas, then flew back to McAllen (it’s a 10 hour drive each way), and then drove them all back myself. I have complied with all of my part of the orders, even though he has not on many probably trivial things in the eyes of the court, so I am just happy if he doesn’t cancel on the kids to see them, because he’s done that, and for no actual justified reason beyond “he forgot it was his weekend.” Since he knew that December was vague, he didn’t say anything about me doing all of the transportation for them last year, he seemed smug, so I told him we could rotate, like we do which half of Christmas break we each get. He said nothing, but he doesn’t usually communicate much. So this year, I heard the kids ask him several times when he was coming to get them for New Year’s, and each time he didn’t directly answer them. Then, on December 26th, he texts me asking when am I bringing them. This was the FIRST time he said anything at all to plan his week with them, so I reminded him that it was his turn to come pick them up. He got very angry, insisted that wasn’t fair, his reaction didn’t surprise me since he usually sees them when it’s convenient for him. I told him repeatedly, in writing, he is free to come get his children for their time with him. He told me and them that it was supposed to be me driving them, he wasn’t going to come. And we haven’t heard from him since, and his window of visitation time is almost over, they go back to school on Monday. He was also sounding threatening that I should call my lawyer, but the orders don’t say that I have to take them, they only say that he can see them. So does he have any grounds to try to come after me legally? I don’t think he would bother since our jurisdiction is here now, not McAllen (it’s been 18 months since the move), and he is currently unemployed, I pay their medical insurance premiums. But he’s always looked for ways to scare me, so I just wondered how this looks from a legal perspective.

    • royreeves says:

      Ms. Flores:

      Sorry for the delay in responding. Your custody orders are effectively your own personal law. Think of it this way, the custody orders are personal to you and your family because they affect only you and your family. When an order is silent on a matter, the Court will, as it does in other laws, look to similar provisions of a related nature but that look is limited as much as practical. In other words, if your orders are specific and detailed for 11 months and left out only the 12th, the first place to look is inside your orders for a “catch all” provision. It may or may not exist and would likely state that “unless otherwise specified . . . ” If there is no general or catch-all and the orders say pretty much the same thing every month, it is reasonable to argue that what you did for 11 months is what you were supposed to do for the 12th. But, if each month is unique based on the presence or absence of holidays, the logical reflection would be in November (another major holiday months) and what was supposed to happen there.

      Simply stated, based solely on the facts you present and without the benefit of seeing the orders in question, I believe you are overthinking this. But, you need to read your orders carefully. Do not assume you understand them unless you have read them. Finally Jurisdiction has not moved unless there is a court order granting the move. It is appropriate in the County where the children reside right now, but Hildago County is the Court of Continuing Exclusive Jurisdiction until it is moved by Court Order. Do not get too concerned about that, I merely point out a legal distinction so that IF he jumps up and runs to Court, you do not ignore his action thinking Hildago County has no power. You would have the duty to respond and ask the case be transferred, then the jurisdiction would move.

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