Enforcement and Modifications

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 custody 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. 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:

1. A finding of contempt, which could result in jail time and/or a monetary fine;
2. An award of “make-up” visitation for the parent who filed the motion for enforcement to compensate for his or her missed time;
3. An award of attorney’s fees to the parent who filed the motion for enforcement; or
4. 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).

Modification Cases

Formerly completed cases follow a different procedure than original cases. Courts may modify an order involving children if modification would be in the best interest of the child and:

• The circumstances of the child, conservator, or other party affected by the order have materially and substantially changed (since the date the order was given or the date the related mediated or collaborative law settlement agreement was signed);
• The child is at least 12 years old and has expressed their preference to the court; or
• The conservator who has the right to designate the primary residence of the child has voluntarily relinquished primary care and possession of the child to another person for at least six months.

Suits Affecting Parent-Child Relationships and Modifications

A Suit Affecting the Parent-Child Relationship is either a stand-alone lawsuit or the portion of a divorce that relates to child support, conservatorship (decision making), possession and access, and the right to determine the primary residence of the child (custody). We typically see these cases if parents that have never been married decide to separate and have never formally entered into orders concerning their children. A Modification is a lawsuit filed to modify a prior order:

• Whether the parents are joint managing conservators, or one parent is sole managing conservator.
• Which parent has the right to determine the child’s primary residence.
• The geographic restriction for the child.
• The possession and access schedule for the child.
• Child support.
• Health insurance for the child.