What is Enforcement?
Enforcement is the legal process by which a person can be forced to comply with a Court order or face the possibility of civil and/or criminal liability. A motion is filed with the Court detailing the violations of the Court Order and asking the Court for a remedy. This can be in the form of fines and/or possible jail time. The most common enforcement actions are for visitation and child support.
What Happens in an Enforcement Action
You or your attorney, if you choose to hire one, will gather evidence and prepare a motion that details each and every violation of the Court Order. Once the motion is filed with the Court, you must serve a copy on the other party. This is usually done by private process. The next step is to attend the hearing.
At the hearing, both sides will present their evidence and their witnesses. The Judge will make a ruling and determine if the person has violated the Court Order or if they have a defense to the violation.
What if I am Found in Contempt
If the Judge determines that the Court Order has been violated, he will render a finding of Contempt. There are different consequences for contempt depending on the type of enforcement. Some of the types of punishment one can face for contempt are:
- Up to 180 days in jail
- Attorney Fees
- Other party may be awarded make-up time for visitation
In addition, you could also be found to be in violation of Texas Penal Code 25.05, which makes it a state jail felony to “intentionally” or “knowingly” fail to provide court-ordered child support for a child under 18. This is known as criminal nonsupport. A state jail felony is punishable by up to six months to two years in a state jail facility and a maximum $10,000 fine.
What Steps Should I take If My Ex Is Violating The Court Orders
If your ex is not following the Court Orders, there are some steps you can take to gather the necessary evidence in anticipation of an enforcement action.
- Visitation issues – If you are being denied visitation, make sure you are following the Court Order with regard to the periods of access and possession and the location of surrender. If you are supposed to be at the other parent’s home at 6 p.m. for pick-up, then make sure you are there at 6 p.m. Always try to take another adult with you that could testify in Court to what they experienced at pick-up. In addition, use your smart phone or other recording device to record the date and time. Knock on the door and request your visitation. You need to do this even if you have text messages that state they will not give you visitation. If the parent is not home, wait 15 minutes then leave. Make sure everything is documented either by video or in a journal written on the date that the denial occurred. It is not enough to state that he or she will not allow visitation because they won’t respond to your texts or phone calls. You must physically take the steps to exercise your visitation. You must document each and every denial of visitation. If you have two or more denials, then seek the advice of an attorney on whether you should file an enforcement action.
- Child Support – Most child support flows through the Office of the Attorney General. The OAG can provide you with a certified statement of payment record to show the dates and amounts of payment for the child support obliger. If a person is not paying child support as ordered, you should obtain a record from the OAG. Make sure you have copies of all orders that affect child support and the payment record for your attorney. The attorney can then file an enforcement action based on the payment record.
- Property Issues – Sometimes Orders address property division or other requirements such as in a divorce proceeding. When the other party fails to comply, you can file an enforcement action to force compliance. Make sure the Court Order is specific enough that it states with certainty what the party is supposed to do and when (or with turning over property, a detailed description of the property and a timeline or deadline). You can attempt to alleviate the issue by sending a letter or notice that the party has failed to comply with the Order and to comply within a reasonable amount of time. If you cannot get the other party to comply, then you should seek an attorney to assist you with enforcement.
One of the statements I hear a lot in family law is the parent is withholding visitation due to nonpayment of child support. While neither parents’ actions are appropriate, these are two separate issues. A parent may not withhold visitation for lack of child support payment.
If your ex is denying you visitation, not paying child support, or is otherwise not complying with a prior Court Order, do not hesitate to contact us. We are here to help you understand your legal rights and how to protect those rights. Don’t be bullied by the other party. The Court Order is in place for a reason. Contact us today to schedule a consultation to see how we can help.