The Five Biggest Mistakes in Visitation Rights and Child Custody Order Enforcement:
There have been hundreds of changes to the family code effective September 1, 2015. You can enforce almost any provision of a custody order by contempt, but not if you do not follow the enforcement process to the letter which begins long before you are ready to file an enforcement action. This article is not a comprehensive guide to enforcement, but what I believe are the five biggest mistakes that can shut down attempts to enforce an order by contempt.
Mistake One: Focusing on the other parent’s behavior and forgetting your own responsibilities
You cannot count on enforcing an order solely based on what the other parent does. Enforcement starts with you doing your part long before filing a Motion to Enforce. If your order says “Sue Mother is ORDERED to surrender Lilly Child to Frank Father at the end of each period of possession at 1600 Pennsylvania Ave.,” then you must go to 1600 Pennsylvania Ave. to pick up your child. Even if you get a call from Lilly saying she is in Brazil and will not be at 1600 Pennsylvania Ave., if you want to enforce your order with contempt, then you have to go to pick her up at the location where you are supposed to pick her up at the exact time you are supposed to pick her up and wait there long enough to determine that she will not be there. You knowing she will not be there will not cut it in court.
Not good. “I arrived at 1600 Pennsylvania Ave., Arlen, TX on Thursday, October 1, 2015 at 6:05 PM – the time of my ordered visitation – and waited 20 seconds.”
Not good. “Sue Mother called me and said she would not be bringing Lilly to see me so I could not go pick her up.”
Mistake Two: Failing to provide proper notice of the child custody order
The violating parent cannot be held in contempt unless he knows ahead of time exactly what the order was that he failed to obey. You have to copy, word for word, every portion of the order that was violated. This is especially tricky with possession violations because there are usually two provisions that need to go in your motion, the possession schedule and the location and means by which the child is supposed to be surrendered.
Good. “On December 31, 2014, this Court signed an order titled Order in Suit Affecting the Parent-Child Relationship which states in relevant part on page 18 as follows: ‘The party who is carrying the health insurance policy covering the child is ORDERED to submit all forms required by the insurance company for payment or reimbursement of healthcare expenses incurred by either party on behalf of the child to the insurance carrier within fifteen days of that party’s receiving any form, receipt, bill, or statement reflecting the expenses.’”
Not good. “We have a standard possession order and I am supposed to have Lilly on the first, third, and fifth Fridays at 6:00 PM.”
Not good. “Sue Mother was supposed to submit forms to the insurance company but she didn’t.”
Mistake Three: Failing to provide proper notice of the child custody order violation
In addition to knowing what order he was supposed to obey, the violator must also have notice of exactly how he failed to obey it. The way to do this is to start by writing the order, and then replace text with the facts you intend to prove.
Order: “Frank Father shall have possession of the children beginning at 6:00 P.M. on the second and fourth Friday of each month and ending at 6:00 P.M. on the following Sunday,” and “Sue Mother is ORDERED to surrender Lilly Child to Frank Father at the end of each period of possession at 1600 Pennsylvania Ave., Arlen, Texas”
Count 1: At 6:00 PM on Friday, October 9, 2015, a day of Court ordered possession, Sue Mother failed to surrender Lilly Child to Frank Father at 1600 Pennsylvania Ave., Arlen, Texas.
Order: “The party who is carrying the health insurance policy covering the child is ORDERED to submit all forms required by the insurance company for payment or reimbursement of healthcare expenses incurred by either party on behalf of the child to the insurance carrier within fifteen days of that party’s receiving any form, receipt, bill, or statement reflecting the expenses.”
Count 2: On October 2, 2015, Frank Father received a statement reflecting $4000.00 of healthcare expenses incurred by Sue Mother. Frank Father failed to submit the statement and claim form, forms required by the insurance company for payment or reimbursement of healthcare expenses, to the insurance carrier by October 17, 2015, fifteen days after receipt of the statement.
Mistake four: Failing to present adequate proof of a child custody order violation in court
The standard of proof for a finding of contempt is beyond a reasonable doubt. You must prove who violated the order, that there was an order, that the defendant had notice of the order, and finally, how the order was violated. The first two are fairly easy, remember to identify the defendant as the person who violated the order and ask the judge to take judicial notice of the order. The last two trickier because the defendant does not have to testify; you are on your own. If the defendant signed the order, you can testify that you are familiar with his signature and it is his signature on the order to prove notice. If your visitation was denied it is helpful if you had witnesses. If the part of the order violated requires documentation to prove, be sure to have documents that are admissible as evidence in court.
Mistake five: Having a child custody order not specific enough to be enforceable
Even if you do everything right, the judge might decide that the order is not specific enough to be enforced by contempt. In that case you will need to ask the court to clarify the order, and you should always make the request in the Motion to Enforce as well as at the hearing.
Enforcing a Texas custody order requires diligence, planning, and attention to detail. Your pleadings have to be written properly and served properly. Before that, the parent wishing to enforce must have done his part to put the other parent on the hook. Long before that, the order needs to be written specifically enough to be enforceable by contempt. If you wait until you are fed up with the other parent’s violations before you start thinking about enforcement, then you may have waited too long. Start thinking about how you will enforce the orders the day they are signed.