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Violations of Court Orders in Child Custody
Now that you a valid court order, what happens when someone violates the order? What does it mean to be in contempt of court?
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There are two types of contempt—direct contempt and constructive contempt, often referred to as indirect contempt.
Direct contempt occurs in court in the presence of the Judge, when someone is disobeying the Judge’s order, such as a juror passing a note to another juror about the case during trial. Here, the court has direct knowledge of the complained about behavior that constitutes contempt.
Conversely, indirect or constructive contempt occurs outside the court’s presence. It could be when one violates a court order that requires them to do a certain act at a certain time. The most common types of contempt or enforcement actions in family law cases arise when one parent fails to pay court ordered child support or fails to obey a court order relating to a parent’s visitation with their child.
Violating Court Orders to Pay Child Support
One of the most common violations of court orders requiring enforcement is a parent failing to pay child support or failing to pay it timely. Typically, unless the obligor, the person who is ordered to pay child support, is more than 30 days in arrears (owes more than a month of child support), a court may not enforce its order and hold the obligor in contempt for failing to pay child support. However, if the obligor owes more than a month of child support, then a motion for enforcement of the child support order is appropriate.
However, even if the obligor owes less than a month’s child support, you can still file a motion for enforcement if the obligor has a history of paying the child support late, creating budgeting issues for your family. Further, if your current court order does not contain an order to withhold the court ordered child support from the obligor’s paycheck, then your motion for enforcement, also known as a motion for contempt, can ask that the child support arrearage, as well as the obligor’s ongoing child support, be withheld from his paycheck.
This wage withholding order will minimize the obligor’s ability to not pay child support obligations and/or not pay them timely. However, every time the obligor changes jobs, a new wage withholding order will have to be sent to the new employer—typically by the clerk of the court once the court is notified of a change in the obligor’s employment.
Violating Court Orders for Child Visitation
Another common type of violation of court order that is frequently pursued in a motion for enforcement is the failure to obey court orders relating to a parent’s period of parenting time, commonly referred to as periods of possession or visitation. This can occur by the parent who has day to day care, commonly referred to as the “Custodial parent”, failing to surrender the child to the other parent for his/her visitation or failing to surrender at the designated time and location set out in the court order.
It can also occur when the parent exercising his/her periods of parenting time fails to surrender or turn over the children at the time and location designated in the court order. In my experience, judges do not condone such violations by a parent, and will not tolerate such conduct.
How to Enforce Court Orders for Violations
If your spouse or former spouse has violated a court order, the first step is to consult a family law attorney to discuss filing a motion for enforcement, also known as motion for contempt. The first inquiry your lawyer will make is to confirm that there is a valid signed court order. Without a signed written court order, you will not be able to succeed on a violation of an oral order.
The next inquiry is whether the written order is clear and specific to be enforceable by the court. If the order does not contain “command language”, commanding a person to do a certain act, the order cannot be enforced by contempt. For example, unless the order commands a person to pay a specific amount of child support, or commands a parent to surrender the child, it is not enforceable by a contempt order, and you will need to request the court to enter an order clarifying the prior order so that it has command language and is specific as to what each parent is to do.
Further, even though an order may “command” someone to do a certain act, like pay child support or surrender a child to the other parent, if it’s not specific, the order will not be enforced by contempt. For example, in a child support case, the order must be specific as to the amount to be paid, when it is to be paid, and where it is to be paid before it can be enforceable by contempt.
Relating to violations of parenting time by one parent, the court order must state a specific date, time and location for the pick-up and return of the child; otherwise, the order will not be enforced by contempt because it is too vague. The reasoning behind this is because a contempt hearing is quasi-criminal, and certain constitutional due process rights come into play for the accused. In short, in a motion for contempt for failure of one parent to allow the other parent visitation with their child, if the order does not command one party to “surrender” the child to the other party at a specific location, date and time, it cannot be enforced. The only recourse then is to request the court clarify its prior order in such a manner that the order is specific and unambiguous in its terms going forward.
Drafting and Filing Motions for Enforcement
Once a review of the order reveals it’s specific and capable of being enforced, your attorney will then draft a motion for enforcement. That motion will contain various “counts” for each violation that the violating party has committed. For example, if the accused has prevented you from exercising your visitation rights on three separate occasions, there will be three counts, one for each violation of the order.
It's important for your motion for contempt to be well drafted. If the motion for enforcement fails to state in concise and specific terms what the other party has failed to do, the judge will rule that it fails to provide the accused fair notice of the “charges” and the court will dismiss the enforcement portion of this motion and the court will not find that person in contempt for violating the court’s order.
In short, interpreting a court order and drafting an enforceable motion for contempt requires a family law attorney who has experience handling such matters. This is a very detailed and specific type of pleading and proceeding. Do it wrong, and you don’t get a second chance to obtain the relief you desire. You certainly don’t want to spend money hiring a lawyer, take time off from work to appear in court and have your case thrown out. What’s even worse, is if your attorney begins the court proceeding and the counts are dismissed because your attorney has failed to properly draft the motion for enforcement. That results in res judicata setting in on each and every one of those counts contained in your motion for contempt, and due to the legal principle known as double jeopardy, those violations that were dismissed by the judge cannot be brought up again against the violator in an effort to hold him or her in contempt.
What Rights Does the Party Accused of Violating Court Orders Have?
Since indirect contempt proceedings in Texas are quasi-criminal in nature, there are certain due process requirements afforded to the accused. If you go to court, you will hear the judge advise the accused of his or her constitutional rights, such as the right to retain a lawyer, and if they cannot afford a lawyer, the right to have a lawyer appointed by the court to represent them, and the privilege against self-incrimination. In other words, you cannot force the other side to testify. If you attempt to do so, that party has the right to remain silent and invoke his Fifth Amendment against self-incrimination guaranteed under the United States Constitution.
What Defenses Does an Accused Have in an Enforcement Proceeding?
Besides the technical defenses that an order is unenforceable because it’s vague, not specific enough and/or fails to state command language, or that the motion for enforcement fails to give the accused fair notice of the charges against him or her because the vague wording contained in the motion for enforcement fails to inform you in a clear and concise manner what you are accused of violating, you may have additional defenses that need to be explored with your family law attorney. For example, in a failure to pay child support case, you might have the defense of inability to pay.
However, few judges will have sympathy for an alleged offender not paying any amount of child support. If you owe $500 a month in child support you should at least pay some amount. If you can pay your rent, utilities and put food on your table, then you should be able to pay something for the benefit of your child. This will at least show the court you were not ignoring your obligations but were making some effort to honor the order. In short, judges typically take the position that your children come first. Kids get fed before the parent.
What Will the Judge do if a Party is Found in Contempt of Court?
Although you may have asked for jail time, the judge in most cases will not order a party to jail for a first offense. There is a practical reason for this. For example, if a party that owes child support has been found in contempt for failing to pay the support or failing to pay it timely, it may not be wise to incarcerate that person for their first offense. This could cause them to lose their job, and then the ability to pay child support going forward, an outcome no one desires.
What the judge often will do is find someone in contempt for violating the court’s orders and impose jail time for the offense but, instead, will likely suspend the imposition of that jail time so long as the guilty party complies with the order going forward. This can be quite effective in coercing compliant behavior from that date forward, knowing that if the guilty party violates the order in the future (even on an unrelated issue), that party could spend time in jail.
Often, the judge will order the accused to pay attorney fees to the innocent party’s attorney for the fees and cost incurred in filing the motion for enforcement, plus the following:
Paying child support arrearages on top of the court ordered ongoing support (if that was the violation found) and/or
Ordering make up time for visitation time that the innocent party lost.
These fees can be ordered to be paid through a wage withholding order, to assure collection. Simply put, Judges do not like their orders being violated. If you do so, you better have a valid reason for not complying.