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It’s my time for possession of our child, what if the other parent refuses my time for possession?

by | Aug 5, 2021 | Family Law

In Texas, orders regarding the rights and duties of conservators create legal obligations that can lead to severe consequences if violated. The violation of a court order concerning child conservatorship can be the basis of the following legal actions:

  • A writ of habeas corpus for the return of the child
  • A charge of contempt of court for violating the court’s orders
  • Criminal liability for the crime of parental kidnapping
  • Civil liability for the tort of interference with a parent’s possessory rights

What is a Writ of Habeas Corpus?

A writ of habeas corpus under Chapter 157 of the Texas Family Code is used by the parent with a legal right to possession of a child in an effort to regain possession from a person wrongfully retaining the child. The sole issue in almost all habeas corpus proceedings is whether the person who is claiming the right to the possession of the child is currently entitled to possession of a child by virtue of a valid court order. It is best to consult your most recent orders to determine who has the right of possession.

Who files the Writ?

The parent entitled to possession may file a petition for a writ of habeas corpus in either the court of continuing, exclusive jurisdiction (the court that issued the most recent orders in most cases) or in a court with jurisdiction to issue a writ of habeas corpus in the county in which the child is found. Tex. Fam. Code Ann. § 157.371.

Although a habeas corpus proceeding is not a Suit Affecting the Parent Child Relationship (known as a SAPCR), a court can make provisions for temporary orders for the children in certain situations. A Habeas Corpus proceeding is a powerful tool that can be used by a parent whose child has been wrongfully kept from them.

What about Contempt of Court?

A Texas court may also enforce conservatorship orders by holding the violator in contempt. Courts can also use their contempt power to enforce child support obligations. The court’s contempt power is a means for ensuring decorum and respect for the court’s authority.

To be enforceable by contempt proceedings, a conservatorship order must generally be specific

A party seeking enforcement of a conservatorship order must prove that the other party violated specific and unambiguous terms of the order. The order must be clear, specific, and unequivocal; otherwise, a party bound by the order may misinterpret what they are required to do to comply with the order. If an order has ambiguous terms, the court may not hold the alleged noncomplying party in contempt. Some things the Court will consider are:

  • Dates and times
  • Geographic locations
  • Identities of the parties and children
  • Prohibited activities (such as traveling outside of a specific geographic area)

What if the other parent interferes with my Court ordered time of possession?

A court may hold a party in contempt of violating an order for conservatorship if they try to interfere with the other party’s ability to exercise their rights as a conservator. For example, if a parent denies a possessory conservator visitation rights, they may be held in contempt for violating the possessory conservator’s rights pursuant to the court’s order.

However, a parent who involuntarily fails to comply with a conservatorship order may not be held in contempt as a result. Courts have held that a parent is not subject to contempt of court in cases where their ability to comply was actively discouraged or obstructed by the other parent; some courts will not make a finding of contempt if a parent passively fails to insist that a child comply with visitation, but some courts take a stronger position in those circumstances.

Disclaimer: The legal information presented herein should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. General advice should always be tested by the particular facts and circumstances of each case. Legal advice is almost always case specific. Statues, ordinances, legal procedures, case law and rules of evidence are often revised.