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What are your options if your ex denies you visitation? Does COVID-19 change the situation? This week our hosts Brian Walters and Jake Gilbreath give you answers. Listen to this week's episode as board-certified family attorneys discuss how to navigate being denied the right to see your children.
The Texas Family Law Podcast is available for download on Apple Podcasts, as well as on SoundCloud and Spotify. Don't feel like listening to it? The entire transcript is available below.
What Can You Do If You're Denied Visitation?
Brian: All right, hello again. Jake and I are gonna talk today about what to do if you've been denied visitation. Jake, have you dealt with this issue before?
Jake: Yes, and probably quite a bit more often now with, with COVID and everything. I think we may have talked a little bit before that's causing some more enforcement issues. and so we're still seeing that. And then it just sort of naturally comes up even for COVID and I'm sure it will come up after where, you know, frankly, this one parent, just for whatever reason, just terrible, the child doesn't allow visitation for the other parent. and then we get the phone call.
I think first things first, the reason why we get the phone call is a lot of times people will find even when there's a court order in place that contacting the police is not always an option that works. First of all, it's not an order, and we'll talk about that in a second. There’s certainly nothing the police can do, and then even if you have a court order, even if it has the magic language in there that they should all have that has a notice to peace officers, that they can enforce the order.
You find many times that a police officer will get called out when somebody is not allowing visitation, and the officer may talk to the parties but won't take that next step to actually force the parents to surrender the child, which is very frustrating. And then they'll say, well, you need to contact a lawyer. And then we get the phone call and I always shoot the phone call regardless. Even when the police are helpful, you should still follow up with the lawyer.
Two is whether or not there's a court order or not, and I’ve given you possession. We get a lot of phone calls where somebody says “ my ex or my soon to be ex is not letting me see my kid.” And we go, what's your court order say, “Well, I'll have a court order. I just want her to be forced to give me access to my child.”
Frankly, there's just not a way to do that. If there is no court order in place, there's no requirement that one parent allows the other parent visitation. It certainly may be the right thing to do, but there's nothing that actually requires a parent to give another parent access to a child unless there's actually a court order in place.
So the first thing we do is try to determine, is there a court order in place? If there's not, then we talk about steps in getting a court order in place.Then you're looking at an original suit, child custody suit, our divorce, along with the divorce. If the parties are married, then we try to get a court order in place.
But let's talk about when there are court orders in place. There's a court order that says when the child's supposed to be turned over and then the child isn't, so what are the options that you discuss with clients Brian?
Brian: Yeah, this is one of the thornier issues. So it depends on the situation.
First of all, you should never violate a court order, obviously. but there are extreme circumstances where it would be probably the only right thing to do, but those are really extreme. I got a call a day or two ago where the parent who, the ex husband had been arrested for assaulting one of the children.
I think anybody would tell the mom “if it's his weekend or not I think you're, you're justified for not handing the kids over.” The smartest thing to do would be to go get an emergency order to block, block him from getting the kids and make that kosher. But that's a real extreme circumstance. Very few people have it that clear.
If someone is denying you, your visitation, then you have really three options.
You could ignore it and hope they don't deny it anymore, which is probably unlikely.
You could seek enforcement, which is a punishment action.
Third, in some extreme circumstances, you can seek a writ of attachment where, or a habeas where the court will order either the child to be seized by law enforcement or order the other parent to immediately turn the child over. Which we've all dealt with. myself very recently. one of those.
So each one is a little bit different. Each one has its own hurdles and strengths and weaknesses and pluses and minuses. Do you want to talk about one of those and then maybe I'll take the next one and we'll cover them all.
Jake: Yeah. And I guess that'd be because let's first talk about the do nothing option. It rarely works.
If an ex gets away one time with a court order and you don't do anything about it, you’re just sort of setting yourself up. That'd be in the precedent even if after, you know, a couple of violations go by and then he or she starts following the order again. It's probably a good idea to still consult with a lawyer and do something about it.
Even if it's a minimal response to it just letting them go is not a good idea. Court orders are very serious. Judges will tell you all day long, correctly that these are corridors of the court. They're meant to be followed, they're enforceable by contempt all the way to jail if you don't follow a court order.
So just doing nothing is, it's rare that we talk about that as being one of the options. On the other extreme is what you were saying in the writ of habeas Corpus and the writ and the enforcement and sometimes you do both. Those are all found in chapter one 57 of the family code. You go get an order, get them served, get 10 days notice of hearing, and then you ever hear from them, you know, two weeks later if you're lucky, so rarely it's a more immediate deal.
In the most extreme case it does get to law enforcement. But if somebody just doesn't turn over the child, say a parent's separate possession with a start on start July 1st and the parent just doesn't turn a child over. You have to go down and get a writ, which is essentially going down and getting an emergency order. And you filed a writ and you have a certified copy of the, of the divorce decree or the underlying court order. And tap and here it is, I'm telling the possession of this child.
And then the judge has three options that couldn't deny the parent, which they're really not supposed to do. If you're entitled to possess the child or go have law enforcement bring the child, right. Then go pick up the child, bring the child over to the other parent.
That's nobody's favorite option and it's rare that's the actual correct way of going about it. But you know, there are extreme circumstances where that's your only option, or the other one is the writ of habeas for the judge tells the signs and order tells the parent, withholding the child to bring the child to the courthouse.
You know, they give them a few days notice to bring the child to the courthouse, and then we're going to effect with exchange. It's been really rare that I've ever done the writ of habeas, where it's you have a constant go pick up the child. The way I typically do it is I'll see if we're in the situation where really a parent's really not turn over the child or saying I can't make a child go.
Sometimes they’ll say I can't make a 10 year old child go to the visitation with her dad or with his mom or something like that. You know, just something like that where it wasn't an appropriate position to take to get the police involved. And we went down to the courthouse and essentially told the judge, we don't want the Constable involved.
If mom's saying she's refusing to bring the child. We go to the Judge and say we want you to sign a writ, but give her one last chance to turn the child over. Tell her if you don't turn the child over, you know, today at six o'clock or the constable was going to go out and pick up this kid. The parent will say “I guess I'll do that.”
Lo and behold, once the judge signed the writ, then the child was turned over. Then we followed up with an enforcement action because as you know, the dad had missed time and attorney fees and all that stuff. So that's the most extreme remedy is a writ of habeas. It's something that we discuss in the consultation.
Then the other one we're going to discuss is what Brian's about to talk about, which is just filing an enforcement and seeking to enforce the court order. So why don't you talk about that procedure, Brian?
Brian: Just to, to flush out what you said, because I just went through exactly this last week.
We don't have the option really these days, at least in most courts, to actually have everybody bring the child to the courthouse and have the judge see the exchange happening right in front of them. Not in most courts certainly. The one I was in is just refusing to do that because of the COVID situation.
We had a hearing recently, where we were real clear. We said “Yep. It's supposed to be dad's time with the children, but it's a 17 year old and they will not go.” The judge said, let's do the exchange. I offered my office or my lobby just cause I wanted to be cooperative and it was relatively easy to do. And the one parent, my client, dropped the children off in my lobby and dad came in and sat there for two hours and the 17 year old would not go with dad and then seventeen-year-old left and drove away.
The judge was real clear. He said “I'm not gonna sign a writ. I'm not gonna have the Constable kicked down a door and for a 17 year old.” And so there really wasn't a resolution of that. I don't know where that's going to end up ultimately. I think maybe if everybody had been in the courtroom, it might have been a little bit different. But maybe not, it's a really interesting world we're in at the moment.
The more common situation and the reason the habeas is working right now, is a lot of the parents, the noncustodial parent, typically has 30 days. So if they don't get them on July 1st, they've got enough time to file, get a hearing, and go back. If you just have a weekend where you don't get your kid on a Friday afternoon, you're not going to be able to file something and get a hearing before Monday morning.
So in those cases, which are much more common, then you file an enforcement. This is a punishment action which essentially says to the court “Hey, the other parent didn't give me my child and I want you to punish them in some manner and also make up that lost time.” Punishment can be a fine, $500 per event.
It's not a real great deterrent to somebody most of the time, but it can be any deterrent, like attorney fees. The most serious part of this is the potential for six months in jail. Now we can talk about the practicalities of that and how often that actually happens, but that's hanging out there as an option.
Jake: So how's a suspended sentence work, because that's something a lot of times we'll do?
Brian: All right. So I’ve been around a few of those. They actually sentence you to the jail, be it six months or whatever. Then they say, “I suspended.” So essentially they say, I'm not going to March you off to jail right now as long as you behave yourself going forward, and then whatever those conditions are, basically, you don't do this again or for a certain period of time. So you have that hanging over your head.
That's important because it's actually really difficult to get an enforcement properly filed, settled and get a ruling, believe it or not. It sounds pretty simple. “Hey, I'm supposed to have my kids on Friday and she didn't give them to me.”
It's shocking how few lawyers can put that together in a proper pleading and have a hearing to prove that. So if you do get to that point, now to come back and get someone actually thrown in jail, all you have to do is show that they violated an order, which is different procedures, a different system than than the original one.
It's supposed to be automatic and if they did violate it and it's generally judges I think are a lot more, as you said, more likely to do this on the second violation than the first. Our system is a lot of things, but injustice is based on the idea that most people are going to obey the laws without having to be sent to jail.
And so I think judges believe that most of the time, and I think it's true. If someone is punished, without sending them to jail, they're not going to do the same thing again a second time and that's not always true, but it seems to be true much more often than not. Has that been your, your observation experience too?
Jake: Yeah, thanks. So, and I, you know, the failure, these things, sometimes you see, come screaming comes in all guns blazing and ask for jail time and stuff like that on our first violation. It's probably the other extreme don't do that. I mean, that's usually not a good strategy because it's not okay to violate a court order.
It's also not okay to speed. It's not okay to possess a small gram of marijuana or whatever. It doesn't excuse it and there should be a punishment in most situations. You're more likely to get a better result if you go on there asking for something realistic. If you go on there saying, judge, this person who's going to jail for six months, for one week in violation. That actually probably detracts from the likelihood that you get all your attorney's fees back, makeup time, and stuff like that.
The way we typically do enforcements is you go in and it needs to be tailored if it's a first violation. You're going in and saying, this is wrong, do a suspended sentence to make up time and give me every single dime of my attorney's fees to do this. I think it's also important to be communicating with the other side because of the attorney's fees.
Yeah. And, chapter one 57, it's says the courts shall do reasonable attorney's fees on the enforcements that get granted, unless they find that the individual doesn't have the ability to pay for it. And then they're gonna have to actually state reasons for that. But it's a partly there for attorney's fees.
So you're more likely to get attorney fees if you're coming in strong, but reasonable, and asking for reasonable remedies rather than coming in hot, racking up $50,000 on our enforcement, and asking for six months jail time for first violation. Now, having said that if you're up there on your second, third, fourth time on enforcement, then that's when you really do start pushing.
If you've taken more reasonable positions in the past and kind of bring it up, you know, building up to that punishment, just like a judge would want to, to get those remedies. So, because of that, I would be able to convince a lot of judges to do suspended sentences and get that filed in contempt.
But going back on something you said Brian, it really is how fascinating, or maybe depressing, but I've seen more enforcements now during COVID, but just amazing to me how many lawyers, good lawyers mess up enforcements rather than just pulling out the family code. You have to do it really specifically.
We're talking about contempt and people's freedom and attorney's fees and everything, and the statutes are really clear on what you have to do. The last two I've defended, I just wasn't able to really prove their case. They got some remedies, but they were asking for jail time and they weren't able to get contempt because they didn’t plead it right. One was a board certified lawyer that forgot to put in the motion, the actual part of the order that was violated, and just sloppy on it. And it's just, it's really, I guess disappointing to see that on both sides. It shouldn't be as difficult as it is, but we see a lot of people kinda mess it up.
Then I guess the other thing I'll say is, you know, people forget about attorney's fees. They remember that attorney's fees shall be or during an enforcement action. What they forget to do is to draft those attorney's fees as child support and the chapter one 57 talks about if you're enforcing child support, then the attorney's fees ordered should be as child support.
And then most people remember to do that. What they forget to do is if you're enforcing possession access, the family code says you get attorney's fees, but the only way you get attorney's fees as child support is if you actually make a showing, That the enforcement was necessary to protect the safety and welfare of the child.
If you forget to do that to ensure the child's physical or emotional health or welfare is looking up exactly what the code says. You have to make that extra finding, that extra step when asking for attorney's fees and linking that up. Otherwise the attorney's fees will just be a judgment rather than me as child support.
And so many lawyers and enforcing possession access, particularly forget to get the attorney's fees ordered as child support. So, Brian, why does that make a difference if I get attorney's fees ordered against me as a judgment versus attorney's fees ordered against me as child support?
Brian: If you’re Jeff Bezos, it probably doesn't matter.
But for most people the child support is much, much more powerful. You can have it withheld from their paycheck. The IRS will intercept their tax refunds, et cetera. There's also more serious remedies for not paying those. And so versus a judgment, which is a piece of paper and most people are judgment proof.
You can't get their money under the Texas Code. There are so many things that are exempt that there's no way to get it. And so if you really want to make the person pay, you need to do it through child support and. I don't think that's a very hard burden to reach if you remember to plead it and remember to put on the evidence.
I mean, I think it's almost pretty obvious if your child's supposed to be seeing both parents and one of them is denying that I think that does harm the child. And, so that should be a pretty straightforward finding, but I agree with you, they don't plead it or they don't put on the evidence and then you've got, maybe you have a $5,000 judgment, but it's pretty worthless because you never see it where if you had a $5,000 child support judgment, even if it's 200 bucks a paycheck, you're still gonna see it plus interest. So that's key.
Jake: Yeah, I think so. More stuff there then, then you think it would be so important to handle it, right. You know, they're not the not fun cases because somebody is not behaving appropriately, but it is good to get in there and make sure that we get the situation fixed.
And then, you know, vice versa, if we're defending them, helping each other, correcting the court order. If they're filing the court order for “good reasons” we kind of get in there and help them. Yeah. As far as actually cleaning up the court order and then dealing with the enforcement.
So, they're more and more common. These days, but we'll always continue to be an issue in our practice. So I think that pretty much wraps it up for this week. Right.
Brian: It does. Thank you very much. And I'm sure we'll talk again soon.
Jake: Alright. Take care. Bye bye.
