How to Get Child Custody Orders Enforced in Texas
Divorce can end an unworkable marriage. Unfortunately, it does not always end the bickering, pettiness, or unwillingness to cooperate between parents. This continuing tug of war becomes more troublesome when your children get caught in the middle. When the other parent disregards court orders involving the child(ren), they’re daring you to do something about it. So do something. Here is how to get your child custody orders enforced.
Bottom Line:
Child custody orders can be enforced in a number of ways, such as fines, contempt charges, or even jail time. Courts impose enforcement not to punish, but to ensure compliance in the child’s best interests.
In this Legal Guide:
A Short Primer of Texas Terms
If you’re new to Texas, or to Texas Child Custody Laws, you should familiarize yourself with the state’s unique terms.
In Texas, “custody” is called conservatorship, and there are two types:
- Sole managing conservatorship: This grants one parent complete authority over crucial aspects of the child’s life. Sole managing conservatorship is usually awarded due to one parent’s absence or misconduct.
- Joint managing conservatorship: Parents share decision-making authority in this arrangement. One may be designated as the primary conservator. The primary conservator is responsible for determining the child(ren)’s main residence. The other — sometimes referred to as the “non-custodial” parent — retains specific visitation rights and the ability to challenge major decisions. If parents share joint custody, neither may be given the exclusive right to determine the child’s primary residence. The child’s residence is limited to a geographic location that both parents must reside within.
Also: Texas does not use terms like “visitation” or “parenting time” to describe when the child(ren) are physically with one parent. The term is possession and access. To keep this guide easier to understand, I will use the terms “custody” and “conservatorship” interchangeably, as I will with “visitation” and “possession and access.”
When You Should File a Petition for Enforcement
In divorce proceedings, Texas courts issue Standard Possession Orders (SPO) pertaining to each parent or party’s possession and access to the child. These are the enforceable rules pertaining to a parent’s visitation schedule. Parents may also enter their own custom possession orders by agreement that differ from the SPO.
However, life happens and sometimes it is impossible for parents to follow the SPO or their custom orders. Texas law allows parents to agree to alter their orders by agreement. After all, parents better understand their children’s needs and their own schedules. If any conflicts occur, or there are no agreements the language in the court’s order is always the fallback.
It’s important to understand that only the provisions in the possession orders are enforceable. Agreements outside of those orders are not.
For example: In a joint managing conservatorship, your ex has the children. You get them on the first, third, and fifth weekends of each month. However, due to a change in your work schedule, you both informally agree to switch to the first and second weekends.
This arrangement works well until a dispute arises. In retaliation, the other parent stops following the informal arrangement. Now, you’re left without access on the second weekend. To fix this, you’d need to seek a change to court orders.
However, if the other parent denies you the original court-ordered weekends, they are in violation of the Standard Possession Order (SPO). This gives you a basis to enforce the order legally.
Mistakes or Mind Games?
You may be experiencing passive-aggressive behavior from the other parent/party as it pertains to the child(ren). Perhaps they arrive 15 to 30 minutes late for possession exchanges. Or they wait until the last day to tell you they can’t take the kids. Or they forget to return clothes, toys, or other important items when returning the children.
While irritating, this behavior is not grounds for legal action unless it appears intentional or becomes a pattern. That doesn’t mean you do nothing, however.
Document Major and Minor Infractions
Is the other parent making honest mistakes or trying to see how far they can push you?
Keep a journal of non-compliance episodes. Note the date, time, place, and the circumstances of each infraction. Preserve any evidence. For example:
- Verify the possession and access schedule to ensure the correct date, time, and location for the exchange.
- Ask the other parent to contact you via text or email about changes to the schedule.
- Document your presence at the exchange location with receipts, photos, and/or videos. Do this even when the other parent has said they are not able to take the kids. Bring a potential witness if you anticipate the other parent will deny no-showing.
- Use time-stamped photos or videos to document that the other parent was late.
- Securely save and preserve all visual evidence.
After repeated “mistakes,” this documentation will be helpful if a time comes to ask the court to enforce the orders.
Address Blatant Non-Compliance
When one parent disregards or defies custody orders, it not only troubles you and offends the court, it also threatens the welfare of the child(ren).
You can move to enforce orders when the other parent or party …
- will not return the child,
- is routinely late for pickups or drop-offs,
- denies your possession and access rights, or
- unilaterally makes major child-related decisions without consulting you, when you share joint custody.
Other Custody Rights
Most custody disputes involve denial of time with the kids or repeated failure to pick up or return them on time. However, those are rarely the only provisions laid out in a parenting plan, that includes the standard possession order.
A parenting plan is specifically tailored to the family’s needs and concerns. Therefore, custody rights can also include:
- first right of refusal for childcare if one parent must be absent,
- restrictions on drug or alcohol consumption around the children, and
- rules about a parent having overnight guests of the opposite sex.
Arbitration and Mediation
If a parent isn’t following long-standing agreements or is acting against the child’s interests, the other can seek to change the court order. Courts might then suggest alternative dispute resolution (ADR). This could include arbitration for a binding decision, or mediation to reach a mutually agreed, enforceable settlement. Parties can also make an informal deal, which isn’t binding until:
- the written agreement says, in boldfaced, CAPITALIZED, or underlined letters, that the agreement is not subject to revocation;
- it is signed by each party to the agreement; and
- It is signed by any and all parties’ attorneys present at the signing.
A court can enforce an informal agreement or a mediated agreement that meets these specified criteria.
— Tex. Fam. Code 153.0071 (d & e)
Legal Options for Enforcing Child Custody Orders
You can’t continue to be patient while your parental rights are denied or disregarded. If your child’s other parent refuses to comply with the court orders, it’s time to lawyer up and take them to court.
File a Petition for Enforcement and Requesting a Finding of Contempt of Court
Contempt of court is the most common remedy in many conservatorship and possession/access matters. Your lawyer can file for enforcement and ask the court to hold the other party in contempt for repeated violations of the court’s order. This can also be called A Motion to Enforce Custody and Visitation. It puts the other party on notice that non-compliance won’t be tolerated. Contempt is an available remedy when the court’s order is specific enough to give the other parent notice of the exact behavior that is expected of them.
A Motion for Enforcement must include:
- which specific part of the order the other parent violated,
- a description of the noncompliance,
- the relief you are requesting, including attorney fees and potential make-up time, and
- a signature by you or your attorney.
How the Process Works
To enforce a court order, file a motion in the court that originally issued it. If all parties have moved, register the order in the new location first. Typically, this will be with the county court where the children now reside.
Next, a hearing will be scheduled. The other parent is then notified, and must appear in court. They need at least 10 days’ notice, or sometimes more, depending on the situation. The hearing may otherwise be held no earlier than the Monday following the 20th day after the date of service. Or, depending on various factors, the hearing is held after a minimum of 45 days’ notice.
During the hearing, both parents present their arguments and evidence. The enforcing parent must prove the other is in contempt. The judge then rules on the matter.
Civil and Criminal Content
If you prevail in the hearing, a judge will issue an enforcement order against the other parent. The order will detail:
- which parts of the original order were violated,
- how the parent failed to comply, and
- any and all relief actions the court will take.
— Tex. Fam. Code Ann. 157.166(a)
If you filed a motion to enforce via contempt, then that is one type of relief. There are two kinds of contempt:
- Civil Contempt: If the court finds civil contempt, it will take “coercive” measures to bring the offending parent into compliance. These may include a monetary judgment including paying your attorney fees and make-up visitation time. The offender is also warned that future non-compliance will result in criminal sanctions.
- Criminal Contempt: This is a punitive action reserved for someone who has flouted the court’s authority and dignity. Penalties can include fines, paying attorney fees, and up to six months in jail. You can ask the court to impose a sentence longer than six months, but that would entitle the offender to a jury trial, if they requested the same.
When the Other Party Won’t Return Your Child
Sometimes a parent may withhold a child out of spite or to protest court orders. They may refuse to return the child or even move away with the child. By move away, I mean the parent will relocate with the child out of the area, or even out of state.
When faced with this dilemma, you have the following two legal options:
Get a Writ of Habeas Corpus
This petition asks a judge to recognize your superior right to possession of the child(ren). If the order dictates that you have the present right to possession of the child, you can then file a Writ of Habeas Corpus. Then, the other parent or party must bring the child to cour to be returned to you. If a non-parent or non-conservator has the child, you can claim custody interference, which could lead to criminal charges.
Note: this writ only recovers the child. It doesn’t alter custody or penalize the other parent for denied time.
Get a Writ of Attachment
Often filed simultaneously with Habeas Corpus, this court order expedites the process of returning your child to you. This is used whenever there’s reason to believe the child might be harmed or taken out of state.
The Writ of Attachment orders that the child be surrendered to a sheriff, constable, or other agency, and immediately returned to you.
Protect Your Child and Your Parental Rights. Call Us Today
Violating custody orders causes instability for everyone, including the children. You do not have to tolerate non-compliance. If the other parent is disregarding custody orders, take action: Reach out to one of our experienced Family Law Team Members. Call 214-884-3775 today to begin your case assessment.