In Texas, all divorce decrees, modification orders, or orders in suits affecting the parent-child relationship contain what is called a “Possession Order”, setting forth when the parties are to have possession of the child. Most Texas orders also include a provision which usually reads as follows:
“IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the parties shall have possession of the child under the specific terms set out in this Possession Order.”
In cases where parties cooperate with each other, their failure to follow the Possession Order (by agreement) is not a violation at all and many times is in the best interest of the child. However, in cases where one of the parties violates the Possession Order without the agreement of the other party, and these violations are frequent, the party may need to ask the Court to enforce the Possession Order. Here are five options for dealing with the other party’s failure to follow the Possession Order:
1. Try talking to the offending party and see if you can work out the problem without resorting to initiating litigation or getting attorneys or the Courts involved. Of course, this approach probably will not work because sometimes a party feels like they can do whatever they want, order or not.
2. Don’t do anything. This is not a good option. If the failure to follow the Possession Order by the other party goes on for an extended period of time, and you do nothing, the Court may interpret this as you are ok with the other party violating the possession order which may result in the other party filing a Motion to Modify the Possession Order to reflect what the parties are actually doing in regard to possession of the child.
3. Seek the assistance of an attorney to draft a demand letter setting forth what the offending party is doing to violate the Possession Order and the legal action you are going to take if they continue to violate the Possession Order. In some cases, this is enough to correct the problem.
4. Have your attorney file a Motion for Enforcement. If the Court grants the Motion, the Court will have the ability to redress the violation. There are many options that are available to the Court to “correct” the bad behavior. The Court may also order the violating party to pay the other party’s attorneys fees.
5. File your own Motion to Modify. If you believe that the other party’s continual violation of the Possession Order creates grounds for modification (you should discuss this with your attorney), then you may file a Motion to Modify the Possession Order. The requested modification should seek to end the violations of the possession order.
It is critically important for parents to cooperate in raising their children, thus avoiding legal fees and Court intervention. Sadly, in some cases, there is no other option.