When a Texas Court issues an order for possession and access (visitation), the order’s terms should be taken very seriously. Suppose a party violates a court order by failing to return the child to the other parent for their court-ordered visitation at the time and location referenced in the court order. In that case, the other parent can bring a motion for enforcement against the party. A motion for enforcement of possession and access is a pseudo-criminal action a parent can file to protect their right to time with the child. While enforcement actions must be filed in the family court where the original order was rendered, the repercussions of a successful enforcement action can include remedies more commonly found in criminal courts. An enforcement action may be filed at any time and can be utilized to enforce a temporary or final order. Tex. Fam. Code s. 157.001. A party responding to the enforcement action, or Respondent, is entitled to at least ten days’ notice of the motion’s hearing date and must be served with the motion in person. As long as the Respondent receives proper notice of the enforcement hearing, the hearing can proceed as scheduled. Tex. Fam. Code s. 157.062.
Once a hearing is held, the Court will decide as to whether or not the responding party was in violation of the order pursuant to allegations made in the filing party’s motion. If the court finds that a parent failed to comply with the court order on at least one occasion, that parent could face serious consequences, including, but not limited to:
- A finding of contempt, which could result in jail time and/or a monetary fine;
- An award of “make-up” visitation for the parent who filed the motion for enforcement to compensate for his or her missed time;
- An award of attorney’s fees to the parent who filed the motion for enforcement; or
- A change as to which party is entitled to designate the child’s primary residence (in the event the party who filed the enforcement action later files a modification of conservatorship).
If the court finds that a parent did not comply with a court order for possession and access, the court may hold that parent in contempt of court. The punishment for contempt can range from a simple monetary fine to up to six months in a county jail for each violation. The court may also place the Respondent on community supervision and suspend the sentence, conditioned on further compliance, which generally includes the timely payment of fines or attorney’s fees ordered, turning over the child for any court-ordered make-up visitation, and attendance of compliance hearings set by the Court.
Because enforcement proceedings are pseudo-criminal in nature, the court must warn the Respondent of their right to be represented by an attorney. If the Respondent is able to prove indigency, the court will appoint an attorney for the Respondent at no cost.
The court may award make-up time to a parent who did not receive his or her court-ordered visitation due to the Respondent’s failure to comply with the court order. However, it is not required to do so. In reference to make-up time, the Texas Family Code states:
Sec. 157.168. ADDITIONAL PERIODS OF POSSESSION OR ACCESS. (a) A court may order additional periods of possession of or access to a child to compensate for the denial of court-ordered possession or access. The additional periods of possession or access:
(1) must be of the same type and duration of the possession or access that was denied;
(2) may include weekend, holiday, and summer possession or access; and
(3) must occur on or before the second anniversary of the date the court finds that court-ordered possession or access has been denied.
(b) The person denied possession or access is entitled to decide the time of the additional possession or access, subject to the provisions of Subsection (a)(1).
If a court finds that a parent has violated a court order for possession and access, the court shall award attorney’s fees. Tex. Fam. Code s. 157.167. Additionally, suppose the court finds that the order’s enforcement was necessary to ensure the child’s physical or emotional health or welfare. In that case, the fees may be enforced by any means available for enforcement of child support, including contempt (but not including a wage withholding order). Tex. Fam. Code s. 157.167(b). This is a significant distinction. If attorney’s fees are not awarded as child support, the money owed is simply a debt, and can be collected only as a debt. However, suppose the fees are awarded as child support. In that case, they can be enforced by contempt or other remedies available to collect child support, making the recovery of these fees much easier for the filing party.
Change in Custody
A change in the parent who designates the primary residence of the child is often an indirect result of a successful enforcement action. While a court cannot change the terms involving conservatorship, or even possession and access, in a hearing on a motion for enforcement, it can consider a successful enforcement action as a reason to change the parties’ underlying order if one parent files a modification of that order. For example, if the custodial parent withholds the child from the parent entitled to possession and access in violation of a court order, and such violation results in a successful motion for enforcement, the non-custodial parent may use this violation as a basis for filing a modification of conservatorship and/or possession and access. Texas courts generally view violations of court orders with serious concern, and a showing of noncompliance on the part of one parent by virtue of the other parent’s successful enforcement action can have dire consequences on the non-compliant parent in a subsequent modification suit.
Even the simplest of Texas court orders can be confusing or convoluted to most litigants. Therefore, it is important to be aware of any potential consequences or legal repercussions a party could face in the event a court order for possession and access is not precisely followed. If the terms of a court order have been violated, the client and his or her attorney should discuss possible defenses or valid reasons for why the terms of the order were not, or could not, be complied with.