Enforcement—Possession and Access
§ 34.1Filing Motion to Enforce
A temporary or final court order for possession and access is enforced by a motion to enforce filed in the court of continuing jurisdiction. Tex. Fam. Code § 157.001. The term temporary order, for this purpose, includes a temporary restraining order, standing order, injunction, and any other temporary order rendered by a court. Tex. Fam. Code § 157.001(e).
Proceedings for enforcement of court orders for possession of and access to a child are filed in the court of continuing, exclusive jurisdiction of the suit affecting the parent-child relationship. Tex. Fam. Code § 157.001(d). The enforcement action is subject to transfer. See Tex. Fam. Code §§ 155.201, 155.202.
If a suit is transferred, the court to which a transfer is made becomes the court of continuing, exclusive jurisdiction, and all proceedings, including contempt, are continued as if originally brought in that court. A transferred order has the same effect as an original order and may be enforced by any means by which the original court could have enforced the order, including contempt. The new court has the power to hear and punish disobedience of the original court’s order by contempt, regardless of whether all or a part of the alleged disobedience was committed before or after the case was transferred, and the original court has no further jurisdiction. Tex. Fam. Code § 155.206.
The court may enforce an order for possession and access, including by contempt, if the motion is filed within six months after the date the child becomes an adult or the date on which the right to possession and access terminates by the terms of the order or by operation of law. Tex. Fam. Code § 157.004.
An enforcement proceeding may be joined with other remedies or claims. An enforcement action does not limit or preclude other civil or criminal remedies, including a suit for damages for interference with a possessory interest in a child. Tex. Fam. Code § 157.003.
If a motion to enforce is joined with other claims, its filing is governed by the Texas Rules of Civil Procedure applicable to original lawsuits. The deadline and rules for answering apply as in other civil cases. Tex. Fam. Code § 157.062(d).
The order to be enforced must be written and signed. Ex parte Wilkins, 665 S.W.2d 760, 761 (Tex. 1984) (orig. proceeding).
§ 34.7Clear and Specific Order
The order to be enforced must spell out the details of compliance in clear, specific, and unambiguous terms so that the person subject to the order will readily know the duties or obligations imposed. Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding). The judgment must clearly order the parties to perform the required acts and not empower one former spouse to impose a duty on the other. Ex parte Brister, 801 S.W.2d 833, 834 (Tex. 1990) (orig. proceeding). But see In re Janson, 614 S.W.3d 724, 727–28 (Tex. 2020) (orig. proceeding) (per curiam) (order ambiguous as to child’s agreed-upon extracurricular activity will not support contempt); In re J.S.P., 278 S.W.3d 414, 423 (Tex. App.—San Antonio 2008, no pet.) (approving appointment of third party therapist to supervise periods of possession but holding terms of order were not specific enough to enforce by contempt).
All the terms necessary to inform the respondent what he must do must be in the order. See Ex parte MacCallum, 807 S.W.2d 729, 730 (Tex. 1991) (orig. proceeding) (per curiam) (place to return child not set out in order); In re Martin, 523 S.W.3d 165, 170 (Tex. App.—Dallas 2017, orig. proceeding) (judgment awarding grandparents thirty-five hours of visitation each month not adequately specific); In re Campbell, 01-17-00251-CV, 2017 WL 3598251, at *6 (Tex. App.—Houston [1st Dist.] Aug. 22, 2017, orig. proceeding) (mem. op.) (“timely” is inherently ambiguous term when unqualified). But see Ex parte Linder, 783 S.W.2d 754, 757–58 (Tex. App.—Dallas 1990, orig. proceeding) (relator who knows with certainty of requirement to perform one of two alternate court-ordered obligations can be punished for contempt for doing neither).
There is no requirement that trial courts must issue orders that are always enforceable by contempt. Whether a party may enforce an order by contempt depends on the contents of the order and the facts and circumstances of the particular case. In re J.J.R.S., 627 S.W.3d 211, 223–24 (Tex. 2021) (nonspecific “as agreed” visitation order upheld).
If the terms of the original order are not clear or specific enough to be enforceable by contempt, the court may render a clarifying order specific enough to be enforced by contempt. See section 34.51 below.
The motion for enforcement must, in ordinary and concise language, identify the provision of the order allegedly violated and sought to be enforced, state the manner of the respondent’s alleged noncompliance, state the relief requested by the movant, and contain the signature of the movant or the movant’s attorney. Tex. Fam. Code § 157.002(a); see also Ex parte Arnold, 926 S.W.2d 622, 624 (Tex. App.—Beaumont 1996, orig. proceeding).
The motion must also include the date, place, and, if applicable, the time of each alleged violation. Tex. Fam. Code § 157.002(c); see also Ex parte Arnold, 926 S.W.2d at 624. An allegation that “[o]n each occasion since May 2015 [mother] either was not home . . . or refused to open the door to allow [father] access” was not sufficiently specific. In re A.G., 531 S.W.3d 329, 336 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
A movant may plead repeated past violations of the order and that future violations of a similar nature may occur before the date of the hearing. Tex. Fam. Code § 157.002(e).
“Civil contempt” provides for remedial punishment in which the person held in contempt is committed until he or she performs some required act. “Criminal contempt” is punitive in nature and is used to punish the person violating the court’s order. Ex parte Johns, 807 S.W.2d 768, 770–71 (Tex. App.—Dallas 1991, orig. proceeding). If criminal contempt is sought, it must be specifically pleaded. See In re Smith, 981 S.W.2d 909, 911 (Tex. App.—Houston [1st Dist.] 1998, orig. proceeding).
In initiating the action, the movant must allege, in the first numbered paragraph of the motion, the intended discovery level. See Tex. R. Civ. P. 190.1.
The notice of hearing on the motion must be personally served on the respondent not later than the tenth day before the date of the hearing. Tex. Fam. Code § 157.062(c).
Except in a contempt proceeding, if the respondent has been ordered under Family Code section 105.006 to provide the court and the state case registry with the party’s current mailing address, notice of hearing on a motion for enforcement of a final order may be served by mailing copies of the notice and the motion by first-class mail to the address of record. The clerk, the movant, or the movant’s attorney may send the notice. The person who sends the notice must file with the clerk a certificate of service showing the date of mailing and the name of the person who sent the notice. Tex. Fam. Code § 157.065. If seeking contempt, see section 35.32 in this manual.
A party who appears at the hearing or is present when the case is called and who does not object to the court’s jurisdiction or the form or manner of the notice of hearing makes a general appearance for all purposes in the enforcement proceeding. Tex. Fam. Code § 157.063; Ex parte Linder, 783 S.W.2d 754, 759 (Tex. App.—Dallas 1990, orig. proceeding).
If the motion for enforcement requests contempt, the court must set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion. Tex. Fam. Code § 157.061(a). A motion for enforcement that requests contempt must be personally served and may be set for hearing with ten days’ notice to the respondent. Tex. Fam. Code § 157.062(c).
If the motion does not request contempt, the court shall set the motion on the request of a party. Tex. Fam. Code § 157.061(b).
If the motion for enforcement is joined with other claims, the hearing may not be held before 10:00 a.m. on the first Monday after the twentieth day after the date of service. The filing of the motion is governed by the Texas Rules of Civil Procedure applicable to original lawsuits. Tex. Fam. Code § 157.062(d); In re Hathcox, 981 S.W.2d 422, 425 (Tex. App.—Texarkana 1998, no pet.).
The notice of hearing need not repeat the allegations contained in the motion for enforcement. Tex. Fam. Code § 157.062(b).
A record of the hearing should be made by the court reporter or, if the proceeding is before an associate judge, as provided by chapter 201 of the Family Code, unless (1) the motion does not request incarceration and the parties waive the requirement of a record at the time of the hearing, either in writing or in open court, and the court approves the waiver or (2) the parties agree to an order. Tex. Fam. Code § 157.161.
COMMENT: It is a better practice not to waive a record of the proceeding if there is any possibility of an appeal.
If a respondent who has been personally served or who has filed an answer or made an appearance fails to appear at the hearing, the court may, on proper proof, grant a default judgment for any relief sought except contempt, regardless of whether other claims or remedies have been joined with the enforcement action. The court may not hold the respondent in contempt but may issue a capias for the respondent’s arrest. See Tex. Fam. Code §§ 157.066, 157.114, 157.115.
For discussion of consequences of a respondent’s failure to appear, including possible issuance of a capias and setting of bond, see sections 35.51 through 35.53 in this manual.
§ 34.13Contents of Enforcement Order
An enforcement order must set forth in ordinary and concise language the provisions of the order for which enforcement was requested, the acts or omissions that are the subject of the order, the manner of the respondent’s noncompliance, and the relief granted by the court. Tex. Fam. Code § 157.166(a).
The basic requirements for the contents of a contempt order are discussed in section 35.61 in this manual.
The court may order additional periods of possession or access to compensate for the denial of court-ordered possession or access. The additional periods must be of the same type and duration as those of the possession or access that was denied, and they may include weekend, holiday, and summer possession or access. Tex. Fam. Code § 157.168(a)(1), (a)(2). The “same type and duration” means “the same amount of time.” A trial court abuses its discretion by awarding make-up time that is greater than the periods for which possession or access was denied. In re Braden, 483 S.W.3d 659, 666 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding). The court may not grant possession of the child “until further order of the court.” In re Parks, 264 S.W.3d 59, 61 n.1 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding).
The additional periods must occur on or before the second anniversary of the date the court finds that court-ordered possession or access has been denied. Tex. Fam. Code § 157.168(a)(3). The person denied possession or access is entitled to decide the time of the additional periods, provided they are of the same type and duration as those of the possession or access denied. Tex. Fam. Code § 157.168(b).
If the court finds that the respondent has failed to comply with the terms of an order providing for the possession of or access to a child, the court must order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to any other remedy. If the court finds that the enforcement of the order with which the respondent failed to comply was necessary to ensure the child’s physical or emotional health or welfare, these fees and costs may be enforced by any means available for the enforcement of child support, including contempt, but not including income withholding. Tex. Fam. Code § 157.167(b). If attorney’s fees are incurred for both enforcement and modification proceedings, the attorney must segregate the fees attributable to the enforcement action or all the fees are enforceable only as a debt. See In re C.A.C., No. 05-17-00602-CV, 2018 WL 2126811, at *3 (Tex. App.—Dallas May 9, 2018, no pet.) (mem. op.); In re Braden, 483 S.W.3d 659, 666 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding). For good cause shown, the court may waive the payment of fees and costs if the court states the reasons supporting that finding. Tex. Fam. Code § 157.167(c).
The court may render judgment for reasonable attorney’s fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney. A judgment for attorney’s fees and expenses may be enforced in the attorney’s name by any means available for enforcement of a judgment on a debt. Tex. Fam. Code § 106.002.
An attorney appointed to represent an indigent respondent facing possible incarceration is entitled to a reasonable fee in an amount set by the court. The fee is paid from the general funds of the county according to the schedule for compensation of counsel appointed for criminal defendants provided in the Texas Code of Criminal Procedure. Tex. Fam. Code § 157.164(a), (b).
The respondent may plead as an affirmative defense to contempt for failure to comply with an order for possession of or access to a child that the movant voluntarily relinquished actual possession and control of the child. The voluntary relinquishment must have been for the time encompassed by the court-ordered periods during which the respondent is alleged to have interfered. Tex. Fam. Code § 157.007.
A mother could not be held in contempt for failure to surrender the child as ordered when she delivered the child to the father at the airport, but the child refused to get out of the car. In re Koomar, No. 09-20-00114-CV, 2020 WL 5805571, at *3 (Tex. App.—Beaumont Sept. 30, 2020, orig. proceeding) (mem. op.) (per curiam).
The issue of the existence of an affirmative defense does not arise unless evidence is admitted supporting the defense. The respondent must prove the affirmative defense by a preponderance of the evidence. Tex. Fam. Code § 157.006.
The court must rule on any special exception or motion to strike before hearing the motion to enforce. If an exception is sustained, the court must give the movant an opportunity to replead and continue the hearing to a designated date and time without requiring additional service. Tex. Fam. Code § 157.064.
Concerning the right to counsel when a party is seeking to hold the other party in contempt and incarceration is a possible result of the proceedings, see sections 35.5:3 and 35.5:4 in this manual.
Concerning the availability of a jury when contempt charges are in issue, see section 35.5:2 in this manual.
For a discussion of the Fifth Amendment privilege in a contempt proceeding, see section 35.5:5 of this manual.
[Sections 34.21 through 34.30 are reserved for expansion.]
§ 34.31Enforcement by Contempt
Any provision of a temporary or final order for possession and access may be enforced by contempt. Tex. Fam. Code § 157.001(b); see Ex parte Morgan, 886 S.W.2d 829, 832 (Tex. App.—Amarillo 1994, orig. proceeding) (parent’s conduct of encouraging children to resist court-ordered visitation with other parent punishable by contempt); In re White, No. 01-18-00073-CV, 2018 WL 2305524 (Tex. App.—Houston [1st Dist.] May 23, 2018, orig. proceeding) (mem. op.) (burden on relator to prove inability to comply with order to transport child to counseling); Ex parte Rosser, 899 S.W.2d 382, 385 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (burden on relator to show inability to comply with court-ordered visitation). The term temporary order, for this purpose, includes a temporary restraining order, standing order, injunction, and any other temporary order rendered by a court. Tex. Fam. Code § 157.001(e).
Contempt proceedings are discussed in chapter 35 of this manual.
[Sections 34.32 through 34.50 are reserved for expansion.]
If an order is not specific enough to be enforceable by contempt, a court, on the motion of either party or on its own motion, may render a clarifying order specific enough to be enforced by contempt. Tex. Fam. Code § 157.421. The court may not change the substantive provisions of the order being clarified. Tex. Fam. Code § 157.423(a). The court may render a clarifying order before a motion for contempt is made or heard, in conjunction with a motion for contempt, or after denial of a motion for contempt. Tex. Fam. Code § 157.424. A clarifying order applies only prospectively for the purposes of contempt enforcement. Tex. Fam. Code § 157.425. A reasonable time for compliance must be provided, after which the clarifying order may be enforced by contempt. Tex. Fam. Code § 157.426.
[Sections 34.52 through 34.60 are reserved for expansion.]
The court may order the respondent to execute a bond or post security if the respondent has on two or more occasions denied possession of or access to a child who is the subject of the order. Tex. Fam. Code § 157.109(a)(1).
The amount of the bond or security is set by the court and conditioned on compliance with the court order permitting possession or access. Tex. Fam. Code § 157.109(b). The bond or security deposit is to be payable through the registry of the court to the person entitled to possession or access. Tex. Fam. Code § 157.109(c)(2).
On the motion of a person or entity for whose benefit the bond or security was ordered, the court may forfeit all or part of the bond or security deposit on a finding that the person who furnished the bond or security has violated the order for possession or access. Tex. Fam. Code § 157.110(a)(1).
The court must order the registry to pay the funds from a forfeited bond or security deposit to the person entitled to possession or access. All or a part of the forfeited amount may be applied to attorney’s fees and costs incurred in bringing the motion for contempt or motion for forfeiture. Tex. Fam. Code § 157.110(b), (c).
Contempt proceedings may be joined with a forfeiture proceeding. Tex. Fam. Code § 157.112. The forfeiture of bond or security is not a defense to contempt. Tex. Fam. Code § 157.111.
[Sections 34.63 through 34.70 are reserved for expansion.]
V. Suspension of License for Failure to Comply with Court Order Providing for Possession of or Access to Child
A court may issue an order suspending a license for an individual for whom a court has rendered an enforcement order under Family Code chapter 157 finding that the individual has failed to comply with the terms of a court order providing for the possession of or access to a child. Tex. Fam. Code § 232.003(c). An “order suspending license” is an order issued by the title IV-D agency or a court directing a licensing authority to suspend or refuse to renew a license. Tex. Fam. Code § 232.001(3).
“License” means a license, certificate, registration, permit, or other authorization that (1) is issued by a licensing authority; (2) is subject before expiration to renewal, suspension, revocation, forfeiture, or termination by the issuing licensing authority; and (3) a person must obtain to (a) practice or engage in a particular business, occupation, or profession; (b) operate a motor vehicle on a public highway in Texas; or (c) engage in any other regulated activity, including hunting, fishing, or other recreational activity for which a license or permit is required. Tex. Fam. Code § 232.001(1).
Unless otherwise restricted or exempted, all licensing authorities are subject to the Family Code provisions regarding license suspension. Tex. Fam. Code § 232.002. A “licensing authority” is an agency of the state or a political subdivision of the state that issues or renews a license or that otherwise has authority to suspend or refuse to renew a license. Tex. Fam. Code § 232.001(2).
“Renewal” of a license means any instance when a licensing authority renews, extends, recertifies, or reissues a license or periodically certifies a licensee to be in good standing based on the required payment of fees or dues or the performance of some other mandated action or activity. Tex. Fam. Code § 232.001(3–a).
A petition to suspend a license must state that the license suspension is required under Family Code section 232.003 and allege (1) the name and, if known, Social Security number of the individual; (2) the name of the licensing authority that issued a license the individual is believed to hold; and (3) the facts associated with the individual’s failure to comply with the terms of a court order providing for the possession of or access to a child. The petition may include a copy of the enforcement order rendered under Family Code chapter 157 describing the manner in which the individual was found to have not complied with the terms of the court order and a copy of the court order containing the provisions that the individual was found to have violated. Tex. Fam. Code § 232.005.
The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1.
When a petition to suspend a license is filed, the clerk of the court must deliver to the individual notice of the individual’s right to a hearing before the court and notice of the deadline for requesting a hearing. The notice must contain the statement prescribed in Family Code section 232.006(c). Notice may be served as in civil cases generally or, if the party has been ordered under chapter 105 of the Family Code to provide the court and registry with the party’s current mailing address, by mailing a copy of the notice and of the petition to the respondent by first-class mail to the last mailing address on file with the court and registry. Tex. Fam. Code § 232.006.
§ 34.74Hearing on Petition to Suspend License
A request for a hearing and a motion to stay suspension must be filed with the court by the individual not later than the twentieth day after the date of service of the notice. If a request for a hearing is filed, the court must promptly schedule a hearing; notify each party of the date, time, and location of the hearing; and stay suspension pending the hearing. Tex. Fam. Code § 232.007(a), (b).
§ 34.75Order Suspending License
On making the findings required by Family Code section 232.003 (see section 34.71 above), the court is required to enter an order suspending the license unless the individual shows good cause for failure to comply with the terms of the court order providing for the possession of or access to a child. Tex. Fam. Code § 232.008(a)(2).
The court may stay an order suspending a license conditioned on the individual’s compliance with the requirements of any court order pertaining to the possession of or access to a child. Tex. Fam. Code § 232.008(b)(3). An order suspending a license with a stay of the suspension may not be served on the licensing authority unless the stay is revoked. Tex. Fam. Code § 232.008(c).
A final order suspending a license must be forwarded to the appropriate licensing authority by the clerk of the court, and the individual may be ordered not to engage in the licensed activity. Tex. Fam. Code § 232.008(d), (e).
The court may enter a default order if the court determines that the individual failed to respond to the proper notice by requesting a hearing or appearing at a scheduled hearing. Tex. Fam. Code § 232.009.
§ 34.77Action by Licensing Authority
A licensing authority shall implement the terms of a final order suspending a license without additional review or hearing. A licensing authority may not modify, remand, reverse, vacate, or stay an order suspending a license and may not review, vacate, or reconsider the terms of a final order suspending a license. The licensing authority may not issue or renew any other license for the individual until the court renders an order vacating or staying an order suspending a license. Tex. Fam. Code § 232.011(b), (c), (i).
A motion to revoke the stay of an order suspending a license may be filed if the individual the subject of an order does not comply with the terms of any court order pertaining to the possession of or access to a child. Notice may be given by personal service or by mail to the address provided by the individual in the order suspending a license. The notice must include a notice of hearing and must be provided to the individual not less than ten days before the date of the hearing. Tex. Fam. Code § 232.012(a), (b).
The motion to revoke stay must allege the manner in which the individual failed to comply with the court order pertaining to the possession of or access to a child. If the court finds that the individual is not in compliance with the terms of the court order pertaining to possession of or access to a child, the court shall revoke the stay of the order suspending license and render a final order suspending license. Tex. Fam. Code § 232.012(c), (d).
§ 34.79Vacating or Staying Order
The court may render an order vacating or staying an order suspending an individual’s license if the individual has complied with the terms of any court order providing for the possession of or access to a child or if the court determines that good cause exists for vacating or staying the order. Tex. Fam. Code § 232.013(a)(1)(C), (a)(2).
[Sections 34.80 through 34.90 are reserved for expansion.]
VI. Uniform Child Custody Jurisdiction and Enforcement Act
Child custody determinations of other states may be enforced under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is contained in chapter 152 of the Family Code. For a detailed discussion of the UCCJEA, see chapter 43 of this manual.
[Sections 34.92 through 34.100 are reserved for expansion.]
VII. Federal Parent Locator Service
§ 34.101Federal Parent Locator Service
The Federal Parent Locator Service (FPLS) (42 U.S.C. § 653) may be used to a limited extent to locate a parent or child for the purpose of enforcing any state or federal law with respect to the unlawful taking or restraint of a child or making or enforcing a child custody or visitation determination. See 42 U.S.C. § 663.
Only information on the most recent address and place of employment will be provided for this purpose. 42 U.S.C. § 663(c). The following “persons” are authorized to request assistance from the FPLS for this purpose: an agent or attorney of the state who has the duty or authority to enforce a child custody or visitation determination; a court with jurisdiction to make or enforce such a determination; and an agent or attorney of the United States or a state who has the duty or authority to investigate, enforce, or prosecute with regard to an unlawful restraint or taking of a child. 42 U.S.C. § 663(d)(2). Parents and private attorneys do not have direct access to the FPLS for this purpose, although they may in situations involving child support.
The FPLS coordinates information from the Social Security Administration, the Internal Revenue Service, the Department of Veterans Affairs, the Department of Defense, the National Directory of New Hires, and other state and federal sources. A request can be transmitted to the FPLS by title IV-D agencies, which also operate state parent locator services. 42 U.S.C. § 653(f). To make an application in Texas, contact: Office of the Attorney General, Child Support Division, State Parent Locator Service, P.O. Box 12017, Austin, TX 78711-2017.