Possession and Access Enforcement
Texas law allows parties a variety of options to enforce an order providing for terms of possession and access to a child. These various methods offer different relief for the harmed party. The harm suffered and relief needed should be the paramount considerations for any party seeking enforcement.
If another person keeps a child at a time that they do not have a right to under an order, the party with the right to possession of the child may get a court order that orders the child be returned immediately. This is referred to in Latin as habeas corpus meaning “that you have the body.” Texas law also allows recovery of monetary damages for mental suffering and mental anguish if a person has taken, retained, or concealed a child when another party was entitled to possession. Third parties should be aware that they are also subject to liability for aiding or assisting another person in taking, retaining, or concealing a child in violation of a court order.
Punishment and Prevention
Just like all other forms of enforcement under Texas law, the Texas Family Code allows the court to punish parties who violate court orders involving possession and access to a child. Punishment is meant to reinforce the importance of a court’s order and to deter future violations. If a person has violated an order providing for possession and access to a child, a court may punish that person through criminal or civil contempt or award the other party additional periods of possession to make up for their lost time.
A finding of criminal contempt can include incarceration, community supervision, or the payment of a fine. To be held in criminal contempt, a party’s violation of the order must be willful. A finding of civil contempt may include confinement in the county jail until a party complies with the court’s order. A court may also clarify an unspecific order so it can be enforced by contempt in the future.
While filing a suit to enforce an order of possession and access to a child will require the initial expense of the filing fees and obtaining counsel if one so chooses, Texas law provides that a court can award reasonable attorney fees and all court costs to the prevailing party. Further, if the court finds that the suit was necessary to protect a child’s physical or emotional health or welfare, any fees and costs awarded can be ordered to be enforced in the same manner as child support (except for wage withholding).
NOTE: If parents wish to deviate from an order regarding possession, it is sound practice to always get such deviations in writing from the other parent. Although a signed letter is best, email or text is often sufficient to evidence agreement of a change. In fact, courts encourage parties to agree when and if possible.
The child visitation attorneys at Orsinger, Nelson, Downing, and Anderson are familiar with the many variations and statutes related to enforcement of possession orders in Texas. If you have a question or issue with a possession order, call us today.