You’ve spent the time and energy arranging for you and your kids to go camping at a nearby state park. Your court order says you are going to have them for a whole week, and you want to make it memorable. You go to pick up your kids from their mom, only for them not to be there or, worse, being flat out turned away—despite it being “your time” according to court orders. Disheartened, you leave empty handed and lose the chance to spend a fun filled week with your kids.
Sadly, scenes similar to the above play out way too frequently here in the State of Texas—indeed, nationwide. Whether out of misplaced anger or just to be cruel, violation of custody orders is a serious problem. Thankfully, it is one that frequently can be rectified by seeking enforcement of the order by the courts. Unfortunately, there are potential pitfalls along the way for the unwary.
While a complete discussion regarding your options and chances at succeeding with an enforcement action are best discussed with an attorney after he or she has reviewed the custody order and the evidence you have already obtained, there are some general tips steps that are common to a lot of enforcement actions.
How to seek the assistance of the courts
An enforcement action typically begins with the collection of evidence. The how’s, what’s, when’s and who’s of the violations are collected and properly documented to assist in painting s clear picture of each and every violation. This process may last a while if documentation is hard to obtain, but is essential to helping ensure that a case at least starts from a decent position.
After the initial collection of evidence, a Motion to Enforce is drafted and filed in the court and cause that the underlying custody order was issued in. Drafting this Motion can be difficult for many non attorneys, and it is recommended that you have a draft reviewed by competent legal counsel before filing a case that might fail due to incomplete or incorrect pleadings. This Motion should set forth what provisions of the custody order are alleged to have been violated, as well as how those provisions were violated by the other party.
This Motion, having been filed, needs to be served with citation on the other party, and a hearing set out beyond 30 days. The other party will have until the first Monday after 20 days have expired since being served with the citation to enter a response to the Motion.
After various pretrial issues have occurred, there hopefully will be a hearing on the merits of the enforcement action. Typically individuals seek to either have the custody order modified in light of the continued infractions by the other party, and/or they seek to have the court find the other party in “contempt”—allowing the court to either fine or jail the violating party. Importantly, proving of criminal contempt requires the party seeking enforcement of the order to prove beyond a reasonable doubt the facts giving rise to the contempt. This is a high burden of proof, and even a perfectly handled case does not guarantee that an offending party will be held in contempt.
And that is pretty much it for the basic steps to take with enforcing a custody order with the court. In a later post some basic tips on the type and depth of detail of evidence to collect prior to seeking enforcement will be discussed. In yet another post, alternatives to court enforcement will be discussed. Finally, an article discussing some specific problems that a lot of enforcement cases have—including the dreaded “vague” custody orders—will be posted.