What Should I Do If My Ex Refuses to Return My Child?

Shayna Sanborn
By: Shayna Sanborn
PublishedFeb 18, 2023
2 minute read

It’s 9 p.m. Sunday and your children were due back three hours ago from parenting time at their other parent’s house. You’ve repeatedly called your ex, but they aren’t picking up the phone. What can you do? The answer to that question depends on a number of factors. This article explains important steps to take if your ex refuses to return your child.

Bottom Line

You have legal options if your ex refuses to return your child to you, but you must act swiftly.

Step One: Go to the Exchange Location 

If your ex is refusing to return your child to you—and it is safe for you to do so—you should physically go to the court-ordered pickup location at the specified time.

If you are able, take a video with your smartphone to establish that you were at the pickup location and that your children and ex either were not present or that your ex refused to let you see them. In addition to calling your ex, send text messages. This will further prove your ex’s lack of cooperation.

If your ex isn’t allowing you to see your kids, they may have violated a court order, which brings you to the next step. 

Step Two: Go to Court

If your children’s other parent is not honoring the court order that dictates parenting time and access, your attorney can file a motion requesting the court to enforce that order through contempt.

However, it’s important to note that you can only get a contempt order if your visitation order is enforceable. In order for a possession and access order to be enforceable, it must clearly state three three elements: a day, time, and place to exchange your children.

A Motion for Enforcement Must Include: 

  1.       which part of the order your ex violated,
  2.       a description of your ex’s noncompliance, (what he or she did or did not do)
  3.       the relief you are requesting, and
  4.       your signature or your attorney’s.

Tex. Fam. Code § 157.002

Additionally, you must document the date, place, and time of each occasion that your ex failed to comply with the order. Tex. Fam. Code § 157.002

How Contempt of Court Works

You can ask the court to punish your ex for failing to return your child by holding them in contempt of court.

The court can impose either civil or criminal sanctions against your ex, or possibly both.

Criminal contempt could mean jail time or monetary fines. Civil contempt is the court’s way of forcing your ex to comply with the court order. 3 Texas Family Law: Practice and Procedure K2.01 (2022)

If you ask the court to throw your ex in jail for longer than six months, this is considered serious contempt and your ex is entitled to a jury trial. 3 Texas Family Law: Practice and Procedure K2.01 (2022)

Writ of Habeas Corpus

If—and only if—a valid court order is in place, you can file a writ of habeas corpus with the court. A judge will then command your ex to bring the child to court for a hearing.

If a judge finds that an existing court order entitles you to possession and access of your child, the court will order your ex to immediately return the child to you. Tex. Fam. Code § 157.372

Writ of Attachment

If your ex refuses to return your child and you are truly afraid your child might be in immediate danger, you can file a writ of attachment. This authorizes a local sheriff or constable to locate the child and return him or her to you immediately.

What are My Options if I Don’t Have a Possession & Access Order? 

If there is no custody order, there is no way to enforce visitation. Neither parent can file an enforcement action without a court order.

In this situation, you may be able to file for custody with the court. Once there is an order in place, the court has the authority to command your ex to return your child.

Call Us Today

Everyone gets emotional where their children are concerned. That’s why Texas has custody laws in the first place. If your ex is flouting those custody laws by refusing to return your child to you, we can help. Call 214-884-3775 today to begin your case assessment.

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