What are Your Rights if You are Denied Visitation?
The first question that needs to be asked is – Is there a current court order for visitation? In Texas, child custody and visitation rights are either resolved by an agreement between the parents - or by the decision of a family court judge as to the custody and visitation rights. Custody rights in Texas are called conservator rights.
The conservator and visitation rights should be set forth in a parenting plan, or the judge should rule on the terms of the parenting plan. If the parents/spouses agree as to the parenting plan, that agreement must still be made part of a court order. If the judge rules from the bench as to the parenting plan terms, that ruling must still be made part of a court order. The court order is a formal written document from the court that sets forth the parenting plan terms.
Plain and simple – if you don’t have a court order, then you need to work with a skilled Texas family lawyer to obtain the court order. Judges and police officers can’t enforce oral or written agreements. They can only enforce court orders.
If you do have the formal court order, there are several remedies - if your former spouse or the other parent of your child refuses to comply with the court order.Calling the Police
Law enforcement needs to see a copy of the formal court order before even considering acting. Police officers generally don't like to become involved in family disputes. Some police officers may advise you to make an appointment with your lawyer. Other police officers may go to the other parent's home and inquire about why the custodial parent is complying with the court. The knock on the door may be enough to get the other parent to respect your visitation rights. If the contact from the police officer doesn't result in the other parent respecting your visitation rights, the officer will likely tell you to see your family law attorney.What Happens if There is a Court Order?
Court orders are meant to be respected. Judges expect that parents who are obligated to let you visit with your child will comply with the court order – unless there’s an extreme situation. For example, a parent may consider denying visitation if the other parent is abusing the child. If abuse is occurring, then the conservator (the parent who has custody of the child) should seek a modification of the court order or seek an emergency order to deny visitation.
The primary way in which you can seek visitation, based on the terms of the court order, is to file a court action seeking to have the judge enforce the court order.
In Texas, another extreme option is to seek a habeas corpus writ or an attachment writ – where the family judge will either immediately order the parent to turn over the child to you or authorize a law enforcement officer to seize the child. This option is rarely used, but there are cases where it may be appropriate depending on the child's age and other factors. For example, a writ may need to be used if the child is 17, and it's the child who doesn't want to spend time with you or the parent who has visitation rights.
You could essentially punt and let your former spouse or the other parent get away with denying you visitation. As a general rule, this option will just encourage the other parent to deny you visitation any time the other parent feels like it.How Do Enforcement Actions Work?
The most common remedy when a custodial parent denies visitation to a noncustodial parent – is for the noncustodial parent to file an enforcement action. In enforcement actions, you ask the family court judge to punish the custodial parent for refusing to honor the court order for visitation.
Punishment may include just a fine. The judge can direct that the custodial period to pay $1,000 or some specific amount if that parent doesn’t honor the court order. Another financial deterrent is for the judge to require that the custodial parent also pay your attorney fees.
The most robust deterrent is for the judge to order that the custodial parent be placed in jail for a specific time or until the court order is honored. A judge may also suspend the sentence by saying something like – "I'm not ordering you to jail yet, but I will be watching what happens for the next six months. If you honor the court order, I'll remove the sentence. But if you don't honor the court order, I will send you to jail."The Practical Issues
Parents should always do what’s in the best interests of their child. If you have visitation rights, there are remedies – but remedies won’t happen overnight. If you don’t get to see your children over a weekend, it may take weeks before the judge hears your case and imposes a remedy on the custodial parent. In some cases, the judge may order that you have additional visitation time to make up for the time you lost.
Generally, judges will give a noncustodial one chance to make a mistake. If the noncustodial parent refuses visitation repeatedly, the judge will likely order stronger enforcement remedies, including jail time.
Another practical remedy is for your lawyer to contact the lawyer for the other parent. Ideally, your ex-spouse’s lawyer or the co-parent’s law will explain that court orders must be obeyed.COVID-19 Complications
During the pandemic, the risk of contracting COVID-19 affects your attempt to force a parent to honor a visitation court order.
- The judge may not want to have people in his/her courtroom unless there’s an emergency.
- A police officer may be less likely to become involved in domestic disputes
- The parents themselves and the children may have concerns about moving between homes
If you don’t have a court order authorizing visitation, we’ll fight to help you obtain a court order. If you do have a court order, we’ll assert your right to visitation before the local family court judge. Our family lawyers are experienced trial lawyers. We’re ready to argue your rights before the appropriate judge. At Lyttle Law Firm, our Austin, San Marcos, and Central Texas family lawyers help parents spend time with their children. We represent parents in Travis, Hays, Comal, Williamson, Bell, Caldwell, Burnett, Llano, and Guadalupe Counties. Call us at 512.215.5225 or use our online form to make an appointment.