It’s hard enough trying to maintain your relationship with your kids on a limited visitation schedule. It can be an incredibly frustrating experience dealing with an uncooperative ex who denies you court-ordered visitation. Fortunately, there are options for you when it comes to the enforcement of child visitation orders. If you’ve exhausted all attempts to resolve the issue outside of legal action, you can ask the court to enforce the order and give you your visitation rights.
Attempt To Settle The Issue
Often, the court will expect you to show that you’ve made an effort to settle the visitation issue with the custodial parent before going to the court for visitation enforcement. Sometimes the other parent might have a legitimate reason and working things out amicably is a key part of co-parenting.
Get Help From The Domestic Relations Office (DRO)
Your county might have a Domestic Relations Office that you can ask for help when enforcing the court order. As the non-custodial parent, you must document a minimum number of attempts to comply with your visitation schedule. In each instance, you should have been denied access to your child.
Modify Your Visitation Order
If either or both parents are having difficulty when attempting to follow the existing order, they may want to discuss coming up with an alternative arrangement. If parents cannot come to an agreement, asking the judge to approve modification of the order may be the best option.
The judge will likely take the decision that is in the child’s best interests.
Have Your Attorney Send A Letter
You may be able to have your attorney send a lawyer’s letter to the other person if they refuse to cooperate in allowing you your court-ordered visitation.
If nothing seems to work, make sure you start keeping track of the dates and times when denial of visitation occurred in a journal. Record any reasons given. Save any messages you have indicated that you were at the pre-agreed location at the pre-agreed time but your ex was not there to perform the exchange of your child.
The evidence you collect can help you build your case if you end up having to go to court.
Seeking Enforcement of a Child Visitation Court Order
Your lawyer may file a motion to enforce with district or county courts. This will request the judge to require the other party to follow the terms of the custody order so that you get your right to your parenting time. The evidence you have collected will be useful to support your argument and convince the judge to help. A child support court cannot handle these issues.
The court may also require your ex to give you make-up time for the days where you were denied your visitation.
An experienced attorney will be able to advise you on the best way to present your case. In some cases, you can press contempt charges against the other party for denial of visitation, or seek to modify the custody order if you believe the other parent regularly breaches the existing custody orders.
Your lawyer may advise you to initiate a civil contempt hearing by filing a motion. Once you’ve filed, the other parent will have to be notified. Once notified, the other parent must appear in court with the child.
You can only petition the court to start contempt proceedings if you can show that one parent willfully and deliberately refused to comply with the court order. If the courts find in your favor, they can order that the other parent serve jail time or provide compensation.
Writ of Habeas Corpus
Your other option is to seek a Writ of Habeas Corpus if the other parent refuses to turn over the child to you. However, it is not a long-term solution if your ex constantly violates custody orders.
Can Police Enforce A Child Custody Visitation Order?
A visitation order is enforceable by local officers. However, they generally hesitate to get involved in what they see as a civil matter.
If there are criminal matters involved such as the threat of abuse that is not in the child’s best interests, the police may find it necessary to get involved to protect the children.
Enforce Your Rights
The award-winning family law experts at Sean Lynch + Associates take pride in fighting for the rights of families in court. Don’t lose access to your children and we can help you file a legal motion to enforce.
As a parent and going through a divorce, chances are you will be sharing custody with your ex. This means the court is likely to address the question of possession of the children and set up a reasonable visitation schedule.
But you may be wondering, how does the court decide what are reasonable visitation rights? And what happens if your ex doesn’t hold up his or her end of the deal? So let’s learn a little more about your visitation rights as a parent.
However, Spears is a grown woman. Let’s briefly explain what it means to be a conservator in Texas, as the terms can be confusing. The State of Texas has two types of custody. Physical custody defines who the children will live with.
Legal custody means having the right to make important life decisions regarding the upbringing of the children. Often, the judge will give primary physical custody to only one person. The court refers to this person as the custodial parent. The other person, of course, is called the non-custodial parent.
However, Texas courts typically don’t use the word custody. Instead, they use the term conservatorship. The court calls the custodial parent the primary conservator, and the non-custodial parent the possessory conservator. The possessory conservator may not have decision-making authority but usually does have visitation rights.
How Does the Court Decide Who Gets Custody in Texas?
The Texas Family Code Section 153.002 states that the court shall make decisions about child custody and visitation based upon the best interests of the child. In an ideal scenario, it is the child’s best interest to spend equal time with both parents. In addition, both parents are equally involved in making decisions for the kids. The court calls this arrangement a Joint Managing Conservatorship.
Of course, in some situations, the judge will restrict the legal and physical custody and visitation rights of a parent. The court calls this arrangement a Sole Managing Conservatorship. This arrangement also can impact the parent’s visitation rights. The judge may require that the visits be supervised. In extreme cases, he or she may forbid any child visitation.
Reasonable Visitation Rights Should Be Flexible
As we mentioned, the State focuses on the child’s best interests. However, parents (usually) have a legal right to spend time with their child. And it is (usually) best for both parents to be involved in the child’s life.
Texas judges understand that one parent or both may have non-traditional schedules. For example, firefighters, police officers, and health care workers often work unusual schedules. In these cases, a strict custody and visitation schedule may not work.
Thus, courts are likely to give parents the opportunity to create their own parenting agreement. This allows the custodial and non-custodial parent to come up with a plan that is reasonable for both parties. If both parents can agree on a plan, they can submit it to the court for review. This plan may become part of the final visitation order.
What If the Parents Cannot Agree on Reasonable Visitation Rights?
The court wants parents to work together. But if they cannot, the court will develop a possession schedule for them, ensuring that the non-custodial parent will have time with the child.
During the school year, children spend the first, third, and fifth weekend of each month with the noncustodial parent.
They also spend one weeknight evening with the non-custodial parent during the school year.
The Standard Possession Order also covers visitation rights for summer and holidays.
Can a noncustodial parent request more time with his or her children? Yes. In this case, the parent can request a Texas Expanded Standard Possession Order (ESPO). In a typical ESPO, children also spend Thursday nights with the non-custodial parent. The child stays with this parent until Monday morning, following the regularly assigned weekends as well. The ESPO also addresses visitation during the holidays and summer vacation time.
What do Do If A Parent Is Not Following the Visitation Order
Unfortunately, divorcing parents do not always have an amicable relationship. Or parents who previously got along well may have a falling out. In these cases, the parent with primary custody of the child may act in spite, intentionally trying to punish the ex. For example, your ex decides to stop cooperating, making it difficult for you to spend time with your child.
If the custodial parent strays from the reasonable visitation rights you originally agreed to, you may need to modify the court order. As a Texas parent, you (usually) have a legal right to see your child. We recommend you consult with an experienced family law attorney who can help protect your parental rights. Read our recent blog, Enforcing a Court Order in Texas.
Don’t Let Temporary Visitation Rights Become Permanent
Life is unpredictable, and occasionally, parents end up having to adjust their visitation plan to accommodate unforeseen circumstances. One parent may end up caring for the children more or less than the court’s original possession schedule. This was a common occurrent last year, when many parents were struggling to cope with the pandemic. Some parents worked from home or had to work additional hours. Others had to home-school their kids. And many parents lost their jobs.
During the pandemic, these temporary adjustments may have gone on for several months. Parents who were now sharing equal custody time began to wonder why they were still paying child support. And primary conservator parents began to worry that they would lose custody. Some parents thought this might be a good time to request a legal change to the possession and visitation agreement.
Parents who have had a significant change in circumstances do have grounds to request a court order modification. However, even if you get a 50/50 custody arrangement in Texas, you may still need to pay child support. In these cases, we suggest you talk with a trusted lawyer. Read our recent blog, Does Being Unemployed Affect Child Custody?
How Long Does It Take to Get Visitation Rights Set Up?
Courts usually can establish visitation rights quicker if they can address them in conjunction with the divorce petition. The process also is likely to go quicker if you and your spouse can agree to a temporary possession and visitation schedule.
On the other hand, the court may need more time to address custody cases for parents who are not married. Again, the judge’s ability to establish reasonable visitation rights will be heavily influenced by how well the parents get along.
An attorney experienced in child custody issues can be very helpful in these situations. Sean Lynch + Associates have over twenty years of Family Law experience and have been voted Best Family Law Attorneys by Fort Worth Magazine five years in a row.
Texas Judges Cannot Make a Parent Visit His or Her Children
If the custodial parent is denying the other parent court-ordered visitations, the court may intervene to ensure that the parenting agreement is being followed. However, the court cannot force the non-custodial parent to spend time with his or her children.
Of course, in these situations, the children suffer the most. If a parent doesn’t show up for a visit, the kids may hold themselves responsible.
If the non-custodial parent routinely misses visitations, the primary conservator can petition the court to modify the visitation agreement. Unfortunately, limiting the other parent’s visits, even if they are inconsistent, may not be in the child’s best interests.
Today, thanks to the internet, we have access to an incredible amount of information. With just a few taps on a keyboard, you can learn how to do anything. But ask yourself this: Would reading a few articles and watching a video about divorce without an attorney make you an expert?
In Texas, the divorce process is complicated. There are many different things to consider. Attorneys spend years in school studying cases to gain the knowledge necessary to provide quality legal advice. They have thousands of hours of practice before they represent clients.
Texas Divorce lawyers can offer you their guidance and shepherd you through your divorce. They can also see issues that may not occur to a novice when you file for divorce in Texas. Even if it is an uncontested divorce, it is in your best interest to seek out an experienced lawyer to handle the pitfalls of divorce, such as complicated financial issues and child custody. Here are a few reasons why you shouldn’t file for divorce without an attorney.
Your Spouse Is Hiding Assets
In a typical marriage, spouses share their property. Unfortunately, it’s not uncommon for divorcing people in Texas to hide assets. Concealing cash, jewelry, and other valuables can add up to tremendous missed opportunities if you don’t know where to look.
The courts know this is a problem. Therefore, during a Texas divorce, both spouses are required to complete financial affidavits. This is a disclosure of all of their income and assets. However, each person should look over all the documentation to confirm the information is accurate. Here are some of the best things to do:
Conduct public records search to determine whether your spouse owns any undisclosed real estate.
If you have been filing taxes separately, review your partner’s previous tax returns and 1099 forms. This can uncover any unreported income or accounts.
Look for suspicious purchases or transfers made from any shared bank or brokerage accounts.
Confirm that only the accounts you know about pay household bills.
Compare monthly expenses to reported income. Ensure these numbers add up.
The discovery process is where divorce without a lawyer could be costly. Family law offices will have detailed knowledge of this process. They should also have connections to experts such as forensic accountants who can help uncover wrongdoing. Trying to accomplish these tasks on your own could result in missed opportunities that may cost you money, even if it is an uncontested divorce.
Get the Child Support Your Baby Deserves
If you have children through your marriage, your divorce will be that much more complicated. There are several issues to address when kids are in the picture.
Determine who will get custody of the children.
Establish a visitation schedule that works for both parents.
Decide the amount and frequency of child support payments, including medical and dental reimbursements.
If you and your soon-to-be-ex can work all this out, that’s great. In reality, having a lawyer by your side through the process will help tremendously. There may be essential items that you overlook. An attorney will also have a better idea of what the court will consider to be a fair parenting plan.
Many of the issues in a custody hearing require detailed documentation. Additionally, if you are unsure of your rights in these matters, you should involve a lawyer as soon as possible.
Consider Long Term Planning
An attorney often has the experience to be aware of longer-term concerns that you may want to consider when you are getting a divorce. For example, an attorney can advise you on how future income can be estimated for a spouse who is deemed to have a bright financial future and how spousal support or child support could be modified in the future if there is a significant change in circumstances.
In a contested divorce, it may be a good idea to hire an attorney and get legal advice. Your attorney will be more effective in helping you to fight your case and defend your rights than if you went it alone in a pro se divorce. In the event that things get ugly with your spouse, you may be able to use your attorney as a shield to help you go through the divorce proceedings and defend your rights.
If there is domestic violence in your marriage, it is highly recommended you engage a lawyer to defend your rights.
Divorce In A Same-Sex Marriage
If you are in a same-sex marriage and you want to file for divorce in Texas, you often may want to get the advice of an attorney given that different states interpret laws differently and court judgments are also evolving.
For example, if either wife in a same-sex marriage had a child during the marriage or is pregnant, you may need to consult a family law attorney specializing in LGBT issues given that the law is still unclear in this area.
Should I Sign Papers In A Divorce Without An Attorney?
Speaking of detailed documentation, at the conclusion of your divorce mediation or trial, one of the attorneys will prepare a Final Decree of Divorce. This is the ultimate binding document of your divorce.
The Final Decree will contain all of the items you’ve agreed upon or all of the court’s rulings and will resolve the divorce once and for all. Before signing this paper, it would be prudent to have counsel review that all of the language proposed is in order. If instead, you choose to divorce without a lawyer, there is a chance that you could miss important omissions in the text in your Final Decree.
Understanding The Divorce Process Without An Attorney
It’s important to understand the process when you get divorced from your spouse pro se without lawyer representation in court.
Meeting Texas Residency Requirements
It doesn’t matter if you have a contested or uncontested divorce. If you and your spouse have not continuously resided in the state for at least six months, filing for divorce in Texas is not possible.
Filing A Divorce Petition
Filing a divorce petition will formally begin the divorce proceedings. You can get the petition from the county clerk’s office. In this petition, you must state the contact details of you and your spouse, financial information, property, debts, proposed settlement arrangement, and the reasons why you want to get divorced.
Once you have completed the petition, you will need to file it with the clerk’s office and pay the filing fees. The court will assign a “cause number” and stamp the petition to confirm that it has been filed.
The state of Texas allows you to file an uncontested divorce as a no-fault divorce. You can get a divorce as long as one spouse believes that the relationship cannot be saved even with additional time and support.
Serve Divorce Papers To Your Spouse
You can either deliver the papers to your spouse personally, ask the sheriff’s office to deliver them or have a third party deliver them. You must obtain proof that you have served the papers to inform them of the divorce filing.
Alternatively, your spouse can sign a Waiver of Citation form that indicates that their agreement that they do not have to be served the petition and that they agree with the details you filed in your petition. It also indicates their agreement that it is an uncontested divorce.
If your spouse is the one who filed for the divorce, you will receive the divorce papers containing information they filed about the divorce as legal notice.
File Temporary Orders
You may need to file temporary orders while waiting for the court hearing, especially if you are dealing with an abusive spouse and need to protect your children. If you can provide information that proves the need, a judge can order a temporary restraining order or alimony from one spouse to another.
Finalize Divorce Agreement
The clerk’s office will set a date and time for your court hearing. Under Texas law, this will be at least 60 days after the divorce petition is filed so that spouses have time to try and work out their differences.
Before the hearing, you and your spouse can take the time to discuss the terms of the divorce decree. If you and your spouse agree on all the terms of the divorce decree in an uncontested divorce, this is a fairly straightforward process and you simply have to bring the divorce decree to the judge to review during your court hearing. If both of you do not agree, the court hearing will become even more important.
The divorce decree should contain all the terms that establish the rights and obligations of each spouse after marriage. It often also contains custody and visitation terms for the children.
Attend Court Hearing
The judge may ask questions to make sure you and your spouse both agree on the terms. During the court hearing, your divorce petition and proposed divorce agreement would be reviewed. The judge will sign off on the divorce decree and agreement before formalizing it in a court order.
However, if you and your spouse both disagree, this is where things can get more challenging. A trial before a judge would be required. Both of you will need to make your arguments in court about why your proposed arrangement is the best option. This is when you may want to engage the expertise of a law firm to present a compelling case and present evidence to the court. Bring all the information you have gathered while preparing for your case.
The outcome of the court hearing will have serious implications on your life after marriage. Often, the terms of the divorce decree will resolve the division of the marital property between spouses, alimony, child support, and the custody and visitation of the children. Marital property can include land, houses, retirement accounts, and vehicles that were acquired during the marriage. In some cases, marital property can also include the growth of a family business that took place during the marriage.
It can also mean getting physical custody of your children instead of only getting to see them during the court-mandated visitation schedule. In a time like this, it may not be worth it to try and save on legal fees. Hire an attorney to help you.
Your Spouse Can Change Their Mind In An Uncontested Divorce
Even if you and your spouse originally agreed on all the important terms such as child custody, alimony, and property division, there is a chance your spouse can change their mind during the process. If they lawyer up, you will most likely have to lawyer up as well to defend your rights.
File Divorce Decree With Clerk’s Office
The final step you must do is to file the divorce decree the judge has signed with the clerk’s office. You and your spouse will each receive one copy of the final divorce decree.
Appealing An Divorce Decree
If you want to appeal against certain terms in the divorce decree, you will need to attend another court hearing. An appeal gives another court the opportunity to look at the trial court’s decision to assess if there was any legal error that could change the final divorce decree.
An appeal case can often involve complex legal standards and arguments and isn’t as simple as asking the judge to reconsider the case. The appeal court will not reconsider factual determinations. You must engage a lawyer if you are appealing a divorce decree due to the complexity involved.
Modifying Divorce Decrees
If you need to make changes to your divorce decree, you can file a modification case. As with a typical divorce case, if your former spouse agrees with you, the case will be fairly straightforward although you need to show evidence of a significant change in circumstances that warrants a modification.
Lawyer-Up in a Texas Divorce
In Texas, a lawyer is not legally required during a divorce. But, if your spouse hires one to help him/her, you should strongly consider doing the same. Think about what is at stake during the process. It is best to be on a level playing field. There are many issues and legal matters you must address. The outcome can significantly impact your future and you don’t want to regret not having an expert on your case. It is extremely difficult to significantly modify a divorce decree once the judge has signed off.
Don’t take on such a complicated matter alone. Experienced attorneys like those at Sean Lynch + Associates can help you navigate your divorce step by step. They can provide the support and representation you need to resolve the unique issues in your case. We have decades of experience in Texas state family law and can provide legal advice. Contact us today for a no-cost case consultation.