Visitation Denial

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Are you being denied visitation?

 
A parent who is denying visitation is:
 
1. in contempt of court. If they are violating court orders, they are in contempt of court. You can file a motion of enforcement.

 
 
2. in violation of Texas Penal code section 25.03, INTERFERENCE WITH CHILD CUSTODY.

  • Is your ex interfering with child custody?
  • What you can do
  • Remedies the court can award you
  • Applicable Statutes
  • Precedent cases (common law)

 
3. liable for civil action under Texas family code chapter 42, CIVIL LIABILITY FOR INTERFERENCE WITH POSSESSORY INTEREST IN CHILD.

  • Is your ex liable for interference with possessory interest in child?
  • What you can do
  • Remedies that the court can award you
  • Applicable Statutes
  • Precedent cases (common law)
  1. The Texas Legislature has put in place statutory provisions that impose a duty on parents not to interfere with the possessory rights of another parent.
  2. If this duty is breached, there arises a cause of action and the breaching party can be sued for damages.
  3. There was case law that allowed parents to recover for Intentional Infliction of Emotional Distress (IIED) when a parent interfered with their possessory rights but now that common law has been codified in chapter 42 of the Texas code. If one is suing under chapter 42 they can here “tack on” emotional distress as additional damages to be awarded.

 
 

Contempt of Court


Is your ex in contempt of court?

To have an action against another parent who has denied you visitation you must show that the other parent violated the court order and that you did not. So if your court orders says that the other parent is to surrender your child to you 6:00 pm on a Thursday at their house, you must be there at 6:00 pm and they must not hand over the child.
Contempt of court can be any action that violates a court order. If the court order says that you are allowed to call your child at certain times when they are with the other parent and the other parent is not allowing th calls, that is contempt. If you are court ordered to pay child support and you do not, that is contempt.


What you can do

1.  Be at the right place at the right time, with the right paperwork. Even if you know your ex will not hand over your child as per court order, you still need to show up and be on time. Bring a copy of your court order and a copy of Texas Penal code 25.03 to show the police, if they come out. 
2. Document, Document, Document. You will need evidence if you want justice.

  • Write down everything that happens, click here for a visitation journal that you can print out and use.
  • bring a witness with you if you can.
  • Buy something at a nearby store and keep the receipt as proof that you were in the area.
  • CALL THE POLICE and tell them you are being denied your court ordered visitation. Tell them you would like an officer to come out and enforce the court orders. If they come out show them a copy of Texas Penal code 25.03 and ask them to enforce it, if they won’t ask them to at least file a report. If they won’t come out when you call, file a report over the phone. Either way, go to the police station and get a copy of the police report. 

3. Send a demand letter 

  • send this certified mail and keep the receipt. If it comes back unopened, don’t open it! Save the unopened letter with the receipt to use as evidence.
  • Keep one copy of the letter as evidence.
  • Find a copy of the demand letter here.

4. Take your case to court. (file yourself or hire an attorney)
At this point you are ready to either begin working on filing your own case or hiring an attorney. Whether you plan on doing the case our self (Pro Se) or hiring an attorney you still need to complete the previous steps. If you are going to hire an attorney, now is the time. If you are going Pro Se the following steps will help guide you.

  1. Paperwork. At a minimum you will need the following paperwork filled out for your enforcement.

-Civil Case Information Sheet (click here for download)

-Motion for Enforcement of Possession or Access (click here to download)

-Order to Appear (click here to download)

-Trial Notebook 

Opening Statement- Basically here you introduce yourself to the judge, tell the judge why you are in court, what you want the court to do and lay out all the evidence you will be presenting. Note, you can not make any arguments here or during your testimony. Arguments are presented during your closing statements. That is where you try to convince the court that based on the evidence you presented you should receive the relief you are asking for.

Your Testimony and Introducing Evidence- After both parties give their opening statements it will be your turn to give your evidence. Your evidence will consist of your sworn in testimony, any exhibits you may have and any witnesses you are going to call. See page 23-30 here for a sample testimony. During your testimony you will present you evidence. Each piece of evidence must have a “foundation”. Which is certain corresponding testimony regarding the evidence, i.e. “This a true and correct copy of the notice/letter of intent I sent to the other parent on…”. Examples of such foundation testimonies can be found in the link to the previous link to the sample testimony. Here is a great book for representing yourself in civil court, with chapters on evidence, opening statements, closing statements, cross examinations.. Represent Yourself in Court: How to Prepare & Try a Winning Case

Cross examination questions– After you give your testimony, the opposing side will have a chance to cross examine you, and your witnesses. Once the opposing side testifies or calls a witness you have the opportunity to cross examine. For more info on cross examination Nolo’s book is good also.

Closing statements– After the opening statements and all evidence has been presented, here, and only here, is where you can make arguments. Here is where you tie together all the evidence that you have presented and explain why the evidence, combined with the applicable law, justifies the remedies you are asking for.

-Order on Motion for Enforcement of Visitation Order and/or Capias (click here to download Motion for Enforcement)

 

2. Elements. Your case will consist of certain elements that must be “proved up”. Each element must be supported by at least one piece of evidence (your testimony, witness testimony or your exhibits).

1. Order was enforceable by contempt. For the order to be enforceable by contempt it must be shown that:

1.1 Order was final – Order must be in writing and signed by the court.

1.2 Order was in effect – No other order can supersede the order which you are claiming the other party violated.

1.3 Order was known by respondent – To be known, the respondent must have notice of the suit, not necessarily notice of the order in question.

1.4 Order was Specific – If reasonable person can differ as to the meaning of the order, it is not specific.

 

2. Respondent violated the order – You must be able to show that respondent violated provisions of the order and what day, time, place and in what way the order was violated. (Here is where your evidence comes in)

3. Violation was willful – This element is only necessary to prove for criminal contempt, not civil contempt. In civil contempt, the respondent can avoid punishment by complying with the courts orders, in criminal contempt, the punishment is set and there is no “getting out” until it is complete.

 
         3. The Process Of Getting in to Court
                     1. File paperwork – Simply bring two copies of your civil case information sheet and motion to enforce to the District Clerk. Tell                                                          them you would like to file your motion to enforce. They will stamp all the document and give you back                                                                  your copies. Most counties now allow you to e-file. So you can simply go to the District Clerks webpage and                                                          look for the e-file link and follow the instructions.
                     2. Set the Hearing – Here you will need to call the judge’s court coordinator and ask what the procedure is to set a motion for a                                                            hearing sign an Order to Appear. If they tell you they are not allowed to give legal advice, remind them                                                                  that you are not asking for legal advice, but rather the legal procedure.
               3. Get the Order to Appear Signed – Here also you will need to call the judge’s court coordinator, ask what the procedure is to                                                                                            get the judge to sign an Order to Appear.set a motion for a hearing sign an Order to                                                                                                      Appear. If they tell you they are not allowed to give legal advice, remind them that you are                                                                                          not asking for legal advice, but rather the legal procedure.
                     4. Giving the other party Notice – File the Order to Appear with the district clerk, the same as with the Motion to Enforce. Now                                                                                     tell the clerk you would like to have a constable serve the Order to Appear and Motion for                                                                                          Enforcement. The clerk will always produce a citation. Sometimes the clerk will give the                                                                                              citation to the constable themselves and sometimes you will have to give the citation to the                                                                                        constable. Ask the clerk if they give the citation to the constable, if not you will need to (ask                                                                                        the clerk how to do this). 
                      5. The constable will then file a return citation with the court once the other party has been served. 


Remedies the court can award you

Attorney Fees
Sec. 157.167(b) If the court finds that the respondent has failed to comply with the terms of an order providing for the possession of or access to a child, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to any other remedy. If the court finds that the enforcement of the order with which the respondent failed to comply was necessary to ensure the child’s physical or emotional health or welfare, the fees and costs ordered under this subsection may be enforced by any means available for the enforcement of child support, including contempt, but not including income withholding.
 
Additional Periods of Possession 
Sec. 157.168 A court may order additional periods of possession of or access to a child to compensate for the denial of court-ordered possession or access. The additional periods of possession or access:

(1) must be of the same type and duration of the possession or access that was denied;

(2) may include weekend, holiday, and summer possession or access; and

(3) must occur on or before the second anniversary of the date the court finds that court-ordered possession or access has been denied.

(b) The person denied possession or access is entitled to decide the time of the additional possession or access, subject to the provisions of Subsection (a)(1).

 
Community Supervision (probation)
The court can order the violating parent to be placed on community supervision to monitor and ensure compliance.

Sec. 157.211. CONDITIONS OF COMMUNITY SUPERVISION. If the court places the respondent on community supervision and suspends commitment, the terms and conditions of community supervision may include the requirement that the respondent:

(1) report to the community supervision officer as directed;

(2) permit the community supervision officer to visit the respondent at the respondent’s home or elsewhere;

(3) obtain counseling on financial planning, budget management, conflict resolution, parenting skills, alcohol or drug abuse, or other matters causing the respondent to fail to obey the order;

(4) pay required child support and any child support arrearages;

(5) pay court costs and attorney’s fees ordered by the court;

(6) seek employment assistance services offered by the Texas Workforce Commission under Section 302.0035, Labor Code, if appropriate; and

(7) participate in mediation or other services to alleviate conditions that prevent the respondent from obeying the court’s order.

 
Return of the Child
(Here, a court can order a parent to return a child immediately to the parent who has rightful possession. This is not a feasible option if you are denied an evening or weekend access, but rather when a holiday, summer or other extended access is denied.)

Sec. 157.371. JURISDICTION. (a) The relator may file a petition for a writ of habeas corpus in either the court of continuing, exclusive jurisdiction or in a court with jurisdiction to issue a writ of habeas corpus in the county in which the child is found.

(b) Although a habeas corpus proceeding is not a suit affecting the parent-child relationship, the court may refer to the provisions of this title for definitions and procedures as appropriate.

Sec. 157.372. RETURN OF CHILD. (a) Subject to Chapter 152 and the Parental Kidnapping Prevention Act (28 U.S.C. Section 1738A), if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator only if the court finds that the relator is entitled to possession under the order.

(b) If the court finds that the previous order was granted by a court that did not give the contestants reasonable notice of the proceeding and an opportunity to be heard, the court may not render an order in the habeas corpus proceeding compelling return of the child on the basis of that order.

 
Additionally
A court can order jail time, fines and any number of remedies the court finds to be necessary and appropriate.
 


Applicable Statutes

TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP
SUBTITLE B. SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP
CHAPTER 157. ENFORCEMENT
Sec. 157.001. MOTION FOR ENFORCEMENT. 
Sec. 157.002. CONTENTS OF MOTION. 
Sec. 157.003. JOINDER OF CLAIMS AND REMEDIES; NO ELECTION OF REMEDIES. 
Sec. 157.004. TIME LIMITATIONS; ENFORCEMENT OF POSSESSION. 
Sec. 157.005. TIME LIMITATIONS; ENFORCEMENT OF CHILD SUPPORT. 
Sec. 157.006. AFFIRMATIVE DEFENSE TO MOTION FOR ENFORCEMENT. 
Sec. 157.007. AFFIRMATIVE DEFENSE TO MOTION FOR ENFORCEMENT OF POSSESSION OR ACCESS. 
Sec. 157.008. AFFIRMATIVE DEFENSE TO MOTION FOR ENFORCEMENT OF CHILD SUPPORT. 
Sec. 157.009. CREDIT FOR PAYMENT OF DISABILITY BENEFITS. 
Sec. 157.061. SETTING HEARING. 
Sec. 157.062. NOTICE OF HEARING. 
Sec. 157.063. APPEARANCE. 
Sec. 157.064. SPECIAL EXCEPTION. 
Sec. 157.065. NOTICE OF HEARING, FIRST CLASS MAIL. 
Sec. 157.066. FAILURE TO APPEAR. 
Sec. 157.101. BOND OR SECURITY FOR RELEASE OF RESPONDENT. 
Sec. 157.102. CAPIAS OR WARRANT; DUTY OF LAW ENFORCEMENT OFFICIALS. 
Sec. 157.103. CAPIAS FEES. 
Sec. 157.104. CONDITIONAL RELEASE.
Sec. 157.105. RELEASE HEARING.
Sec. 157.106. CASH BOND AS SUPPORT. 
Sec. 157.107. APPEARANCE BOND OR SECURITY OTHER THAN CASH BOND AS SUPPORT. 
Sec. 157.108. CASH BOND AS PROPERTY OF RESPONDENT. 
Sec. 157.109. SECURITY FOR COMPLIANCE WITH ORDER. 
Sec. 157.110. FORFEITURE OF SECURITY FOR FAILURE TO COMPLY WITH ORDER. 
Sec. 157.111. FORFEITURE NOT DEFENSE TO CONTEMPT. 
Sec. 157.112. JOINDER OF FORFEITURE AND CONTEMPT PROCEEDINGS. 
Sec. 157.113. APPLICATION OF BOND PENDING WRIT. 
Sec. 157.114. FAILURE TO APPEAR. 
Sec. 157.115. DEFAULT JUDGMENT.
Sec. 157.161. RECORD. 
Sec. 157.162. PROOF. 
Sec. 157.163. APPOINTMENT OF ATTORNEY. 
Sec. 157.164. PAYMENT OF APPOINTED ATTORNEY. 
Sec. 157.165. PROBATION OF CONTEMPT ORDER.
Sec. 157.166. CONTENTS OF ENFORCEMENT ORDER. 
Sec. 157.167. RESPONDENT TO PAY ATTORNEY’S FEES AND COSTS. 
Sec. 157.168. ADDITIONAL PERIODS OF POSSESSION OR ACCESS. 
Sec. 157.211. CONDITIONS OF COMMUNITY SUPERVISION. 
Sec. 157.212. TERM OF COMMUNITY SUPERVISION. 
Sec. 157.213. COMMUNITY SUPERVISION FEES. 
Sec. 157.214. MOTION TO REVOKE COMMUNITY SUPERVISION. 
Sec. 157.215. ARREST FOR ALLEGED VIOLATION OF COMMUNITY SUPERVISION.
Sec. 157.216. HEARING ON MOTION TO REVOKE COMMUNITY SUPERVISION. 
Sec. 157.217. DISCHARGE FROM COMMUNITY SUPERVISION. 
 


Applicable Case Law

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