When you walked out of the court room, order in hand, things stated out smoothy between the two of you. Everyone was following the court’s order and working together in raising the children. Then things began to change.
It started off slowly at first with the other parent running 15 minutes late. You did not make a big deal out of it because you received a phone call and traffic was bad. Then 15 minutes became 30 minutes and the phone calls about running late stopped. You attempted to discuss the
matter with the other parent but you found it did not change the behavior. You continued to find yourself waiting later and later for the other parent to show up with your children. Eventually the other parent was not showing up at all.
Maybe it was a little different for you. Perhaps it was the other parent occasionally taking an extra night and you were receiving makeup time. You did not mind because you believed you were working together and co-parenting. After all, you know children do best when both parents work together in a flexible and cooperative way. Then it started happening
more and it became difficult for you to schedule make up time with the other parent. Then finally, the other parent just stopped turning over the children all together. Now you are looking to enforce the court’s order.
Motion for Enforcement
I have found one of the most common problems faced by parents who do not live together is the denial of parenting time to the other parent. If it is left unaddressed it may lead to serious issues that can continue to follow the children into adulthood. That is why it is so important for a parent to have the ability to enforce a court’s order for possession and access of
the children.
A parent wanting a court to enforce its child visitation order will file a Motion for Enforcement of Possession or Access. The motion is filed in the court that made the last order. In order for the court to enforce its order you must prove (1) the possession and access order is enforceable by contempt and (2) the other parent violated a provision in the order.
Is the order enforceable by contempt?
The first step to seeking an enforcement of a possession and access order is to make sure the order is enforceable by contempt. An order is enforceable by contempt if:
(1) the order is final;
(2) is in effect at the time of the violation;
(3) is known to the other party; and
(4) is reasonably specific.
An order is considered reasonably specific if it provides a specific date, time and place for the exchange to occur. If the order is not enforceable by contempt it is very important to file a modification or seek clarification of the last order so the order will be enforceable by contempt.
Proving violation of the order
The second step to seeking enforcement of the court order is proving the other parent violated a provision of the order. The motion for enforcement must specify the date, time, place and manner in which the other parent violated the order. The purpose of this requirement is to inform the other parent exactly how they have violated the court’s order.
TIP: It is a good idea to keep an accurate record of when you have the children. A simple calendar entry will work. There is no need to write a three-page journal entry, unless you want to. The purpose of the calendar entry is to keep an accurate record of when you have the children. This will make it easier for you to remember each violation of the court’s order by the other parent.
What a court can do to enforce its order
If the court finds the other parent violated the terms and conditions of the possession order, the judge will have several choices available including:
(1) providing you makeup time with the children;
(2) issuing a suspended commitment to the parent withholding the children (this occurs when the court sentences the parent who committed the violation to a jail sentence but then allows the parent to remain free for a period of time so long as the parent follows the court’s order. The parent will serve the jail sentence only if the parent does not follow the court’s order); and
(3) locking up the other parent in jail.
In determining the appropriate remedy, the judge will consider the severity of the violations, the attempted communication between the parents to address the violations without court involvement, and the frequency of the violations.
Talk to a lawyer
If the other parent is not following the visitation order and you would like to discuss an enforcement with me, call us at 361-882-7788 or email
izm@iramillerlaw.com to schedule your initial strategy session.
Frequently Asked Questions
1. Can I receive attorney fees and expenses in an enforcement action?
A: Yes. If the judge rules that the enforcement was necessary to ensure the child’s physical or emotional health or welfare, the court can award attorney fees and costs by any means available for the enforcement of child support. However, the court can’t order wage
withholding for attorney fees and expenses.
2. What if the order is not enforceable by contempt?
A: If the order is not enforceable by contempt it will be necessary to have the judge modify the order to make it enforceable by contempt. Depending on the order, this may be done by seeking the court to clarify its order in the motion for contempt filing, or it may require the
filing of a modification in a suit affecting the parent child relationship.
3. I know the other parent is not going to show up to exchange the child, do I still need to go?
A: Yes. Even though you already know the other parent is not going to show up with the child at the designated location you still have to show up. In order for the court to enforce your visitation, you or a person designated by you, must go to the correct location at the
correct time. If you do not attempt to pick up the child then there is nothing for the court to enforce.
4. What evidence is helpful to show I am showing up?
A: This answer depends on what the order states. If the exchange occurs at a public place, such as a restaurant or gas station, I always advise my clients to buy a drink when they first arrive and wait for the child. If the other parent does not show up with the child after a
reasonable time, go into the store or restaurant and buy another small item and save both receipts. The receipts have a date and time stamped on them, showing when you arrived and when you left. I have found this to be very compelling evidence.
In the event you are picking up the child from the other parent’s home, you may wish to consider bringing a good friend with you who knows the child well. That way your friend is available to testify if necessary.
There are times when one parent will have to call the police to seek enforcement of the order. If you decide to call the police, make sure you have a copy of the order to show the officer. Also, make sure you get the officer’s name and the report number so you may obtain a copy of the report.
If the other parent is not following the visitation order and you would like
to discuss an enforcement with me, call us at 361-882-7788 or email
izm@iramillerlaw.com to schedule your initial strategy session.