Text: “It’s 6:15 pm. I’m here waiting for the children; are they ok?”
Call the other parent.
Call a friend or relative of the other parent to find out if they are ok.
6:20 pm: Get into the car.
Take another selfie.
Write the time and what you did to try and solve the problem in your visitation diary.
12:00 pm: Following day. Notify the other parent. “I attempted to pick up the children yesterday at 6:00 p.m. I waited until 6:15 pm and then tried to contact you and your family to find out what was wrong. I left at 6:20 pm without the children. I will reach out to you to arrange makeup visitation at a later date.”
Expected Missed Visitation Procedure
If there is a good reason, such as a child is sick, agree in writing to skip visitation with makeup time specified in the agreement.
If there is not a good reason, agree if you want to with makeup time specified in the agreement.
If the other parent refuses to specify makeup visitation, do not agree in either case unless you don’t want makeup time.
If there is no agreement to miss visitation, follow the regular Visitation Procedure and Unexpected MIssed Visitation Checklist.
What do I do when I show up to pick up my child from the mother for my visitation and my child isn’t there?
Don’t get emotional.
First, there is no need to get emotional. Missing a scheduled visitation can be very frustrating, especially given the inconvenience of travelling to the pickup location and waiting. Set aside your need to react emotionally and focus on what you need to do. Use a visitation procedure or checklist ahead of time so you don’t even have to think about anything. Follow your procedure every time whether something goes wrong or not.
Remember, possession schedules can be confusing! She could be mistaken about who is supposed to have the child or you could have misread something that was written in a confusing way. Sometimes an order on one page changes something in the possession schedule five pages away.
Ask if you are not sure.
Some of my old clients call me with questions about what they are supposed to do and I always try to take those calls because I don’t want them getting into trouble either. Don’t feel bad if you make a mistake, and try to be understanding when the other parent does. That doesn’t mean give up your time, you should still ask for make-up time if you are sure you are right.
Have a plan.
Control your emotions.
Keep a visitation diary.
Have a copy of your order with you.
Write down the exact time you arrived to pick up your children and how long you waited.
If the child isn’t there or no one answers your knock, take a picture at the exchange time.
Wait at least 20 minutes.
While you are waiting, try to solve your problem and re-read your order to make sure it is your time.
If you don’t get visitation, try to reschedule.
You should always keep a visitation diary. It should be a separate calendar, notebook, or planning book that is only used to document visitation. When you arrive at the location designated for the exchange at the designated time, write down the exact time you arrived and how long you waited. See this Sample Visitation Procedure.
Always go to the location for the exchange to pick up your children, even if the other parent tells you that you won’t be getting visitation unless you agreed to reschedule. If your child is not there, take a selfie at the time the exchange is ordered and wait at least twenty minutes. During that time you can attempt to call or text the mother to find out what is going on. You should also re-read your order to make sure it really is your time. Make a note in your diary of what you did to solve the problem. Make sure your photo is backed up to the cloud with the embedded time and location data.
If you do not get your scheduled visitation, try to ascertain why in writing either through text or email messages depending on how you normally communicate. Script your communications ahead of time as much as possible so that you don’t have to think about it and you don’t put emotions into your messages that could get you into trouble. You should also attempt to schedule an extra visitation period to make up for the time that you missed. Again, note in your diary what you did to try and solve the problem.
Whether or not you should attempt legal action against the mother after missing a single visit depends on the specific facts of your case, the evidence you have, the jurisdiction where you live, and your specific judge. Only a local attorney can properly advise you of your options. See Child Custody Enforcement Mistakes.
In this post I will explain why a Houston man really went to jail for failing to obey possession and child support orders and what it means to you.
News stories are often a source of misinformation. Misinformation from news sources can feed our perceptions of unfairness. Our perceptions of unfairness can get us into trouble. It is not that journalists want to deceive you, but sometimes we all hear the story we want to hear and get stuck in a cycle of confirmation bias. Confirmation bias is the tendency to disregard evidence that contradicts truths we firmly believe or want to believe.
Watch the video below from Fox News Houston. It purports to tell the tale of a father sent to jail for the crimes of paying too much child support and visiting his son too much.
Confirmation bias is the tendency to disregard evidence that contradicts truths we firmly believe or want to believe.
No, You Won’t Be Thrown in Jail for Paying Too Much Child Support.
It is an error for you to be jailed for overpaying child support. Fox News Houston left out that the father owed $2,743.09 in back child support arrears when the mother filed her enforcement. While the case was reset at least once and the father did make his child support current, that was not enough to correct the contempt.
As of June 14, 2013 you can no longer avoid jail simply by showing your child support is up to date at the enforcement hearing.1 The original hearing was set for June 10, 2013, before the repeal went into effect; however, it was reset by agreement to give the father time to pay. Unfortunately, the father had erroneously believed he was up to date before the June 10 hearing and needed time to make one more payment. By the time of the new hearing, the repealed law could no longer help him escape jail.
As of June 14, 2013 you can no longer avoid jail simply by showing your child support is up to date at the enforcement hearing.
The father also tried to argue that the missing child support was the fault of his employer. He claimed that an employee incorrectly entered the withholding amounts from his paycheck. The problem with that argument is that you, not your employer, are responsible for ensuring child support is paid correctly. Your order probably even says this. You do not get to enjoy the benefits of your employer’s mistakes at the expense of your children.
In fairness to Fox News Houston, Snopes also got this story wrong. The Houston Court of Appeals did overturn one violation where the trial court found the father guilty of paying too much child support.2 Unfortunately for the father, the appeals court was able to overturn only this part of the order and leave the remaining violations and the father’s sentence intact.
Yes, You Can be Jailed for Visiting Your Children Too Much.
Visiting your child too much is probably a violation of your order. It is another way of saying you have your child when the other parent has the right of possession. A court ordered parenting plan is written to give children fair access to both parents. Either parent deciding that he should have more time with the children without the other’s permission is deciding that the Court was wrong. Judge’s don’t like that. They also don’t like it if you disrespect the Court by disobeying the Court’s order. If one parent can prove beyond a reasonable doubt the other is visiting his children against orders without permission, a Judge can and often will put him in jail.
How Stories Like this Hurt You.
In my previous post, “When Cultures Clash”, I explain a little bit about cognitive dissonance and confirmation bias in the context of mixed-culture divorce and remarriage. Briefly, our cultures largely define our belief systems. When someone acts outside of our belief system we often see that as bad. Once we define a person as bad, we start to discount everything positive we hear about them and emphasize the negative. Because of this confirmation bias feedback loop, the bad person keeps looking worse and worse in our minds until he becomes the worst thing since Prince Humperdinck.
There is already a perception that fathers do not get a fair shake in courts overall. The thing to remember is that no matter how true this might be, it says absolutely nothing about your individual case. At least in Texas, the law is that mothers and fathers are treated equally. There is a standard parenting plan. There are guidelines for child support. There is a presumption against spousal support. Texas’ public policy is to maximize the time children spend with both parents, and judges generally follow the law.
A bad attitude feedback loop can adversely affect how the Court rules for you, but it probably won’t!
If you go to court believing stories like this, and believing you are not going to get a fair hearing, you won’t–at least not in your mind. You will already be emotional because of whatever brought you into court. Because of confirmation bias, every ruling against you is going to feel unfair. The Judge will see your attitude and probably won’t like it. The judge’s attitude might show through, further feeding into your confirmation bias. A bad attitude feedback loop can adversely affect how the Court rules for you, but it probably won’t! Once you ratchet up that attitude, though, it is going to be harder to follow the final orders.
What Should I do?
Always go into Court in professional attire with a professional attitude. Maintain that professional attitude no matter what. Pre-trial, you are auditioning for the trial court. In trial, you are auditioning for the appeals court. Expect the Judge to be fair. A judge can be fair but wrong. Sometimes the judge is wrong because of a mistake that can be appealed, but most of the time it is because your evidence did not support the “correct” ruling. However, because of cognitive dissonance, the losing parent often rationalizes the judge’s decision by believing he is corrupt or has a bias against one sex. This is usually counter-productive.
A judge can be fair but wrong. Sometimes the judge is wrong because of a mistake that can be appealed, but most of the time it is because your evidence did not support the “correct” ruling.
If you are ordered to appear for an enforcement, get an attorney. The judge should give you the option to reset so you can find one at the first hearing but don’t count on it. Get an attorney even if you think you can work out an agreement with the other side. Once you are in front of a judge and facing large fines and a jail sentence, the other side has a huge amount of leverage to get a very unfavorable settlement from you.
1See Act of May 23,2007, 80th Leg., R.S., ch. 1189, § 1, 2007 Tex. Gen. Laws 4054, 4054, repealed by Act of May 22, 2013, 83d Leg., R.S., ch. 649, § 2, 2013 Tex. Sess. Law Serv. 1735, 1735 (West) (effective date June 14, 2013)
2017 has been another big year for updates to the Texas Family Code. The vast majority of the updates involve child welfare and CPS. The 2017 updates provide protections to parents who homeschool and for poor parents and parents with convictions for certain nonviolent offences. The updates also provide protections for parents who administer low-THC cannabis to their children according to a prescription, and there is a brand new chapter for Temporary Authorization for Care of a Minor Child. Now that parents and non-parent caregivers of children have new rights and protections, be sure to talk to a Family Law Attorney who can tell you how the law applies to you. Some of these laws may not be in effect yet.
There are a few dozen rights and duties of conservators of children specified in the family code. A conservatorship (child custody) order can allocate these rights any number of ways. This article will focus on five rights of parent conservators: Child support; possession and access; consent to treatment; making important decisions; and being informed about the child’s health and welfare. It is important to remember that no right or duty depends on any other. For example, if you are denied possession you still have to pay child support, and if you did not receive child support, you still cannot deny possession.
If you are a parent, you generally have a right to:
Have your children at certain times,
Receive information about how your children are doing,
Consult with the other parent about how to raise your children, and
Make decisions about how your children are raised; and
Depending on the orders you may have a right or duty to pay or receive child support.
The other parent cannot deny you any of these rights without a court order. If you feel like your custody rights are being denied by the other parent, call an attorney for a consultation. Your kids only grow up once.
Child support is a major source of conflict when parents are separated. If you pay child support, think of it as paying taxes. When you pay taxes, the government takes money from you, you have no say in how it is spent, and it will be spent stupidly if for no other reason than to annoy you – just like child support. If you value your sanity, you will not look into any detail on how your tax dollars are spent, neither should you you pay attention to how your child support money is spent. Cover your ears, close your eyes, and sing a happy song to yourself if you have to, without a change in conservatorship, there is not much you can do about how that money is spent.
What if I can’t pay your child support? First of all, not paying your child support can cause you a lot of problems, but seeing your kids is not one of them. Make sure you do what you need to do to enforce your visitation above all. If your ex says you cannot see your kids until you pay up, go to pick them up anyway; but document, don’t argue. You can come back later to try and get the time you missed through an enforcement.
Second, don’t just skip payments. If your circumstances have materially and substantially changed — you have had other children, you have gone on active duty, you were injured, etc., then your support order can be modified. If you have lost your job, it is going to be harder to get a reduction but it may be worth a try. The important thing is to do everything you can to support your child and to be able to show that you have been doing everything you can to support your child.
Child Support CYA Checklist
_ Open a rainy day account and deposit 25% of your child support payment amount every month for the first year, 15% the second, and 10% after that until you have a year’s worth of payments saved up.
_Be polite to your Ex. It’s good for your kids, and your blood pressure.
_ Save your performance reviews.
_Review and update your résumé every six months.
_If you lose your job, get a haircut and start mailing your résumé that day. Keep a diary of everything you are doing to find another job. Imagine what someone could criticize you for not doing enough in your search. Immediately seek a child support reduction.
What if I am not getting my child support, or it is consistently late? In that case you have a couple of options: the Attorney General’s Office or a private attorney. A private attorney is going to represent you, while the Attorney General’s Office represents the State of Texas. If your ex has money and you can come up with an initial retainer, then a private attorney is probably your best bet. A private attorney can move fairly quickly according to your direction and should be able to collect attorney fees from your ex. Attorney fees earned to collect child support can usually be enforced with jail just like child support.
If you have an ex that habitually and intentionally avoids paying child support and goes into hiding every time he gets out of jail, then you will probably be better off letting the Attorney General enforce it; otherwise, you might end up out the attorney fees as well as the child support owed.
Possession and Access
You have a right to possession of your kids if it is in the order. You have a right to see them on the dates and times indicated in your order. So why does it get complicated? Sometimes it is innocent – the kids have some activities they want to do; sometimes it is not – the other parent schedules the kids for something during your time. Sometimes a parent has the child call to ask the other parent for permission to attend an activity instead of visitation. These are tricky situations to deal with and you should discuss them with an attorney or family counselor to get specific advice, but, generally, schedule makeup time in writing or go to court and enforce the order. Judges have seen the games parents play in these situations so try to be calm and smart and do all of the right things.
Making Important Decisions
These decisions could be allocated differently in your order so it is best to check or seek legal advice. In general, both possessory and managing conservators can usually make their own decisions concerning moral and religious training, non-invasive or emergency medical treatment, decisions about education health and welfare, and how to discipline the child. Often there are strong disagreements about how the other parent makes these decisions, but unless it is having a significant impact on the child’s health and welfare, you may need to learn to live with it.
Information About Your Child’s Health and Welfare
If the other parent is not keeping you informed about your children’s health and welfare, go to their doctor’s office and get a copy of their complete medical records. If the other parent won’t tell you who the children’s doctor is, then file an enforcement if you are entitled to medical information in your order. Hiding information about children’s health is a big red flag. Maybe it is being done out of spite, but often information is withheld because someone has something to hide. Parents can see things that absolutely shock them when they look at a full set of medical records for the first time.
Many schools have student records online and you should certainly look at those, but it doesn’t hurt to get first-hand information from students and counselors. Being the possessory conservator does not make you a second-class parent. Even if communication with your ex is good, a different set of ears listening to school officials can be helpful, and your order should say that you have a right to consult with school officials.
Parents don’t lose the right to participate in raising their children when they break up or get a divorce. These rights can be enforced. If you feel like your custody rights are being denied by the other parent, call an attorney for a consultation. Your kids only grow up once, and they have a right to your support and guidance.