Rightly or wrongly, Texas is known as a "pro-mother" state when it comes to custody decisions. In this state, if a child's parents are unmarried, the court will automatically grant the mother legal and physical custody. If the parents are getting divorced, the mother will likely get full custody if the child is 3 years old or younger.
Legal and physical custody means that a child's mother has the right to make all major decisions regarding healthcare, education, and religion. However, it doesn't mean that she can keep her child from their co-parent or continuously violate a visitation order. If your child's mother isn't allowing you access to your child, here are some steps you can take to enforce your rights.
Create a Visitation Agreement
If you and your co-parent don't have a written visitation agreement, the first step in enforcing your visitation rights is to get the terms down on paper. If you don't think you'll be able to reach a mutually acceptable arrangement on your own, consider mediation. A mediator is a neutral third party that can help you and your co-parent come up with custody terms that work for both of you.
Once you come up with these terms and memorialize them in a signed contract, any violation of the visitation arrangements would be a violation of that agreement and give you grounds to file a lawsuit.
Get A Possession Order
If you and your co-parent cannot come up with a mutually acceptable visitation agreement, the next step is to go to court and ask the judge for a Possession Order ("PO"). A PO is a court order visitation schedule that both parents must follow. It gives the non-custodial parent possession of the child at specific times throughout the year.
Keep A Visitation Journal
If you have a PO that your child's mother continues to violate, it's important that you keep detailed records of the violations. Your visitation journal should include:
• Detailed information about who was there when you tried to see your child,
• What happened during the visit or missed visit,
• The date, time, and location of where you tried to visit your child, and
• The reason your child's mother gave you for preventing the visit.
It would help if you also started keeping evidence to prove that you arrived at the court-ordered visitation point at the correct time. Things like receipts from nearby convenience stores or gas stations can a long way to prove that you were at the right place, at the right time.
Seek Visitation Enforcement
Once you have a journal demonstrating your co-parent's persistent violation of the visitation schedule, it's time to go back to court to seek visitation enforcement.
Visitation enforcement helps a non-custodial parent get access to their child when their co-parent refuses to comply with the PO. Denying access isn't the only grounds that you have to seek court-orders visitation enforcement. Other violations include:
• Withholding visitation because of problems with you or other friends and relatives,
• Blaming a desire on the child’s part not to go with you,
• Trying to change the visitation schedule without consulting the court,
• Threatening to end visitations if you do not acquiesce to specific demands,
• Having another person pick up and drop off your child,
• Moving and failing to notify you or the court, or
• Sabotaging a visitation schedule by planning conflicting activities.
Request A Custody Modification
If you've gone through the visitation enforcement process and your co-parent still won't comply, you may want to seek a modification to your custody order. At a custody modification hearing, the court could grant you more visitation time, change the visitation schedule in your favor, or modify custody arrangements altogether.
During these proceedings, you can also ask the court to make your co-parent to pay your attorney's fees for their behavior or hold them in contempt. A contempt finding can lead to a fine of up to $10,000 and a jail sentence of up to 2 years.
If you need help getting your co-parent to comply with your child's visitation schedule, Angela F. Brown and Associates can help. Contact us today to schedule a private consultation and get expert legal help.
This is the twelfth article in our Unthinkable Series. We'll publish articles about some of the unique custody situations we've encountered in our practice with tips to help you overcome similar challenges during the series. Then we'll host a live Q&A session where you can get your custody questions answered in real-time later in the week. If you have questions about this series or would like to submit a question for our live Q&A, please contact our office here.