Enforcing Court Orders
The Law is on your side as long as you obey the Court’s 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 occurence.
Contempt of child support or child possession (custody) orders is common. In a typical situation, the parent-conservator with primary custody (Mom) does not want the other parent-conservator (Dad) to have visitation with the child(ren). It is also common for the parent-conservator obligated to provide child support (Dad) to refuse to give the money to the other parent (mom). When this happens, one or both parties can file a Motion for Contempt and Enforcement with the Court. The Enforcement Action is generally 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 someone.
It is important to note, that each and every occurence or time visitation is denied or each month child support is not paid is a violation. 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.
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 orther 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. To be very direct – child support is not conditioned on access and access is not conditioned on payment of support obligations. DO NOT enter a court on a contempt action with the excuse that you did not pay child support because the other parent denied you access/visitation. By the same token, DO NOT expect the Judge to have any sympathy for you if you are being charged with contempt and your excuse is “He did not pay me.”
Contempt or Enforcement, what is the difference?
A divorce decree is not just a binding legal document, it is a court order. A party’s failure to comply with certain terms of the decree can give rise to a legal cause of action, a suit to enforce the court’s order. Failure to respond to an enforcement action can have serious negative consequences including fines, changes to the divorce decree in favor of the other party, and even jail time.
Contempt is quasi criminal whereas Enforcement is entirely civil in nature.
When you go to Court for child custody or child support, the Judge will issue an Order. This Order can be “Agreed” or simply rendered by the Judge. Either way the parties are presumed to have knowledge and the Judge is not impressed with the excuse “I did not know.”
A party that ignores a Court Order can be held in contempt or the Court can elect to enforce the orders and in rare occasions, the Judge can do both. The difference is primarily a technical one but the appropriate motion for pleading is based on what you want to achieve and equally important, how egregious is the offense.
Most parenting plan violations, if closely analyzed, involve completed specific acts of disobedience to a court order. Even if the offending party offers to “make it up to you” there really is no cure. For example, if the father is denied access and visitation over Father´’s Day Weekend, allowing him an extra weekend later just is not the same. Accordingly, a contempt proceeding seeking to impose a remedial sanction, i.e., a sanction that is intended to compel compliance to a court order that is presently being disobeyed really does little or no good.
However, there are times when one party´s failure to obey a court order is a mere matter of willingness and the party must be coerced into compliance. In this case, a contempt sanction is appropriate. Think of it this way, “enforcement” is a means of getting the thing you were denied; “contempt” is a means of punishing the other party for not giving that thing in the first place.
Enforcement actions as contempt of court are used most commonly when one parent is not paying child support or refusing to allow scheduled visitation time.
More importantly, early intervention may allow you to engage in constructive planning with the other parent, rather than litigation.
As discussed on the left, a party cannot be held in contempt for failing to pay a debt because “debtor´s prison” violates a key principal of the U.S.Constitution and the Texas Constitution prohibits imprisonment for debt, so a contempt order based solely on a failure to pay a debt is void. Debtor´s prison is a system in which a person who owes a debt could be placed in prison until the debt is paid by the individual or the debtor´s family. The prohibition against debtor´s prison does not apply in a case of failure to pay child support.Failure to pay child support is considered failure to perform a legal duty, not failure to pay a debt.
Note however, before you run hire a lawyer expecting to throw that “good for nothing dead beat . . . in jail”, unless he or she has the money and is just not giving it to you out of spite, the jail will not serve the coercive intent. You simply cannot put someone in jail until they comply with an order that the person has no ability to comply with from the start.
What should you do? First, consider what you really need to accomplish. Second, contact our office and get instructions on what information is needed to proceed. If your goal is to enforce child support a quick review of the Child Support Registry report is all that is needed. However, if your goal is to enforce visitation, you will need wintesses to show that you made the effort and you were denied – if Mom says you cannot see the kids and you do nothing, technically she has not violated the orders, you have to go knock on the door and attempt to exercise your visitation if you want to hold her in contempt. Our office can advise you on the procedures you need to follow and evidence you need to secure to ensure your enforcement hearing is successful the first time.
Child support or child custody enforcement actions between parents often quickly spiral out of control into hotly contested litigation. Early legal advice regardless of which side of the enforcement action you are on can save both time and financial resources. If you are owed child support or have been denied visitation with your children, you need to call and schedule an appointment or send us an e-mail. Waiting is not always the best action, however getting the evidence together first is almost always a wise decision.
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