Possession and Enforcement - Visitation
Denial of Possession and Access is Contempt of Court

image You have a court order that awards to you exclusive periods of possession and access to the exclusion of the "primary" - your visitation.  When mother, or the primary as the case may be, refuses to surrender the child per the court order she is in contempt of court. When mother is in possession of the child in violation of an order, she is in contempt of court. .

The first thing you need to do is understand your order. You know the exact dates and times when you are supposed to have possession of your child. Hopefully, your order is a standardized possession order that everyone understands.  There is a problem with custom orders in that they may be written so badly that they are unenforceable. We had a case with this issue in 2010.  Although there were 43 actions of contempt pursuant to the order, only one was enforceable by contempt - the child's birthday provision.  Mother was held in contempt and given the evidence associated with the other 42 provision, the Court ordered a change in custody.

The second thing you need to do is attempt to take possession of your child.  Doesn't matter that you know the mother will not release the child to you, you must attempt to take possession pursuant to the order.  That means, you and a witness go to the mother's home at 6:00 p.m. on the first weekend of the month (if that is what your order says to do), knock on the door and, if answered, request possession of your child.  If you are refused possession, then log that in your log book.  If not answered, then log that in the log book.  Failure to make the attempt to take possession means you cannot hold the mother in contempt.
We had a case where the exchange point between the Mother and Father occurred in Sulfur Springs Texas at a specific place ("at the Exxon Station containing an A&W Restaurant located at 1234 S. Broadway, Sulfur Springs, Texas near the Interstate 30, Highway 11 -  Sulfur Springs Exit numbered Exit 124").  This was one-half the distance between Dallas and Mount Pleasant.  The exchange was to take place at 6:00 p.m. on the 1st, 3rd and 5th Friday of the month.  The Father had given up trying to take possession of his child pursuant to the order - mother and daughter never showed.  After consulting with us,  we advised the Father to send a U.S. first class and certified mail to the mother advising that he was going to appear at the exchange point pursuant to the order which he did.  He drove 1.5 hours to Sulfur Springs to arrive at 6:00 p.m.  She didn't show.  He did it again two weeks later. She didn't show.  This kept building.  Along the way, the mother consulted an attorney who advised her that she needed to show up with the child (a teen).  So, mother started to show up at the exchange point.  The problem was the mother wouldn't release the child to the father.  The mother, her new husband and the child teen would show up at the exchange point and the child wouldn't go with the Dad.  This too occurred over and over.  Result: we filed our contempt action, and after trial the mother was held in contempt of court, fined $9,000 paid immediately, sentenced to one week in jail and ordered to pay the father's attorney's fees.  After that, there never was any "exchange problem" again.

Okay,  you have an order that specifically describes what is to occur (time of exchange and where the exchange takes place) and you have attempted to take possession of the child but the child has not been released to you.  The next step is to move forward with the contempt action.  The title of the document is Motion to Enforce and Order to Show Cause.  This document must be written extremely specific.  Failure to draft the Motion and Order specifically means that the mother cannot be held in contempt. This is something that many lawyers simply do not understand that the specifics are very important.  Note, every time the mother fails to transfer possession she is in contempt on two counts.  The first, she has denied possession when she has no right of possession.  The second is she has failed to surrender the child as ordered.  This occurs every single time there is a failure to transfer the child to the other parent conservator.  Our Motions for Enforcement set out (1) the specific language that has been violated, (2) a clear and specific description of what the mother was supposed to do and failed to do, and (3) attached the order sought to be enforced as an exhibit to the motion.  Although the statute says that you only need to quote the language or attach the order to the motion, we do both.  Specificity, including the language sought to be enforced and attaching the order to the motion insures that the mother can be held in contempt.

There are those that like to say, "no judge will hold the mother in contempt on possession."  We have simply not found this to be true.   In Dallas County, most of the courts will enforce with jail but for a short period of time - an attention getter if you will.  There is one court in Dallas that holds no body in contempt for what ever reason.  In the outlying counties like Collin County, Denton County, Ellis County, those judges simply do not play.  It is not unheard of for a mother to do 30 days.  The outlying counties can be harsh.  An example,  Momma was in Collin County and was held in contempt of court on possession.  She did 30 days.  Upon release, she moved to Denton County.  She once again started her games.  That judge started fining her.  From to fire.  Another example, we filed one case in Dallas County (where the court of continuing jurisdiction was located) but the mother then moved to transfer the case to Collin County where the child was living.  She has the right to do this.  However, she landed in one of the toughest courts in Collin County. That judge don't play.  She did 30 days.  A routine sentence for that court.

There are two main cases on possession contempt actions: Ex Parte Thomas Johnson Rosser (899 S.W. 2d 382) - the Houston Case and Ex Parte Morgan (886 S.W.2d 829) - the Amarillo Case.  

Rosser
is the lead case.  In Rosser, the Father was the primary and Mother was the nonprimary.  Daughter Julie refused to go with Mother during her periods of access.  The Father did everything he could do to make daughter Julie go with Mother.  He was held in contempt of court.  What follows is a portion of the testimony, note Julie's opinions: "At this hearing, Julie gave various reasons, based on the strained relationship with her mother, that she had not gone on the cruise and was opposed to the summer visitation.  AS to relator's not complying with the visitation order, Julie said  - "I think that even if you force me to, you know, to physically drag me, I just don't believe my dad would do that. I just -- I mean, he couldn't do it.  He can't drag me to do anything.  He made it very clear that there would be consequences if I didn't go and I think that shows how persistent I am and not just someone who will force me to visit my mother and to have a relationship with my mother. 

As to whether relator could have, but didn't, get her to comply with the order, Julie stated: "that's not true. He couldn't.  He told me I had to go.  He said that he would drag me into the car and I said that I would go run away to a friends if he forced me to go visit her.  I just don't see how he can be held in contempt of Court when he's done everything that he possibly could to -- I mean, if you want to hold me in contempt of court.  I am the one that said I did not want to go.  It wasn't my father . . .Julie also said from the beginning, relator had told her that she needed a relationship with her mother and that it was important."

In Morgan,  the Amarillo case, the trial court held the mother in contempt of court for passively discouraging her daughter from going on visitation with her dad. The mother was jailed but then on a writ of habeas corpus she was released because (a) the write of commitment as an oral impermissible writ of commitment and (b) the trial court did not issue a written commitment order until after the Court of Appeals had taken jurisdiction. 

In the opinion in what lawyers call dicta, the Court of Appeals went on to say:

"Our above holding would ordinarily obviate the necessity for further discussion. (this is dicta - they have resolved the case and are now talking about other matters.  In other words, this is not law.) However, both parties have asked that we discuss the question of whether a managing conservator, such as Morgan, may be held in contempt for a failure to, if necessary, bodily deliver possession of minor children to a possessory conservator, such as Scherer. Because of that request, the paucity of authority on the question, and the likelihood that the question may reoccur, we will consider the issue. Note: regardless of any of that, the Court of Appeals may not render an advisory opinion - even when both parties have requested the opinion.

"Under the law, and this court order, Scherer was entitled to possession of the children during specified visitation periods. Morgan would be subject to contempt proceedings if she overtly or covertly sought to impede Scherer's taking possession of the children for his visitation. However, in this case, the trial judge did not find that she acted in such a manner. Rather, his finding was that Morgan's passive conduct amounted to a denial of visitation. The evidence shows that Morgan did have the children and their baggage present at the agreed location for Scherer to take possession of them. Under this record, Morgan's passivity was not punishable by contempt.

There you have it - Rosser says tat a parent must actively engage the child into going on visitation with the other parent or be held in contempt of court.  This means, get their bag and put it in the car, take the child by the hand and put him/her in the car and do not allow the child to reenter the home.  This is the only case directly on this point.  In Morgan, the mother can sit passively by such that the child does not go on visitation with the other parent and it is okay. This holding is advisory and is dicta because it was of no consequence to the ruling.  Any attorney advising a client along the lines of Morgan does so at their peril. In our Collin County case, the Mother did her week of incarceration and pad the $9,000.00 in fines for passively allowing the child to choose whether or not she would go on visitation.


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