At the end of a divorce case or a custody proceeding between unmarried parents, the court issues a final order in which one parent (the custodial parent) is usually granted primary custody of the child and the other parent (the non-custodial parent) is granted visitation rights with the child. These visitation rights allow the non-custodial parent to take the child from the custodial parent, have the child for a set period of time and then return the child to the custodial parent. However, after the divorce or custody case is over, the non-custodial parent may find that the custodial parent won't stick to the visitation schedule in the court's final order. The non-custodial parent may find himself or herself more and more often missing out on court-ordered periods of possession of the child because the custodial parent won't turn over the child. If a parent does not comply with the visitation provisions in a court's final order, the other parent can ask the court to punish the non-complying parent. This is known as enforcement.
This article is divided into two parts. Part 1 reviews the steps that should be taken before filing an enforcement case with the court. Part 2 describes the enforcement case itself.
Part 2 - Motion for Enforcement
Visitation can be enforced by filing a Motion for Enforcement with the appropriate family court. Which court is appropriate depends on where the children live, and the non-custodial parent should consult with a family law attorney to figure out the right court. The Motion for Enforcement should request that the custodial parent be held in contempt for each violation of the visitation provisions in the court's final order. Contempt is when an individual fails to obey a court order. There are two forms of contempt: civil and criminal. Civil contempt allows punishment for an indefinite period of time until the custodial parent performs or stops performing certain acts. Criminal contempt allows punishment by incarceration in the county jail for a maximum of 180 days per violation and a maximum fine of $500 per violation. Contempt adds teeth to a Motion for Enforcement and is a must when dealing with a custodial parent who repeatedly and willfully violates the visitation provisions of a court order.
Once the Motion for Enforcement and any accompanying exhibits and documents have been filed with the appropriate court, the court can set a date, time and place to have the enforcement hearing. Usually, the non-custodial parent will have to contact the court's coordinator to request a hearing date. Ideally, the hearing date should be at least 20 days out to allow proper time for service. The hearing date will be reflected in an Order to Appear signed by the court. The Motion for Enforcement, the Order to Appear and some additional documents have to be personally served on the custodial parent at least 10 days before the hearing date.
Leading up to the hearing date, the non-custodial parent should prepare with his/her attorney. At the hearing, the non-custodial parent will need to prove that specific visitation provisions in the court's final order were violated by the custodial parent. This will be done through witness testimony and documents. If the proper groundwork was laid, then the non-custodial parent should have a paper trail to present to the court. The time before the hearing is when the non-custodial parent and his/her attorney should review testimony and gather documents.
If a properly served custodial parent doesn't show up to the enforcement hearing, the court can issue a capias. The capias is a writ that will require law enforcement officers to take the custodial parent into custody. When the court issues the capias, it will also set an appearance bond. The custodial parent can bond out of custody on the condition that he/she shows up for the next enforcement hearing. If the custodial parent wasn't released on bond, law enforcement officers will take the custodial parent to the court for a release hearing. If the custodial parent remains in custody after the release hearing, the enforcement hearing needs to happen no later than the seventh day after the custodial parent was taken into custody.
When the enforcement hearing involves the possibility that the court can incarcerate the custodial parent (which can happen if contempt was requested), the court has to let the custodial parent know about his/her right to have an attorney if the custodial parent is unrepresented. The court will usually postpone the hearing to allow the custodial parent to hire an attorney. If the custodial parent claims they can't afford an attorney, then the court will need an affidavit from the custodial parent showing indigency and may also hold a hearing to determine if the custodial parent is indigent. If the court finds that the custodial parent is indigent, then the court will have to appoint an attorney for the custodial parent.
At the enforcement hearing, the non-custodial parent will present his/her evidence first. The non-custodial parent needs to prove each element of criminal contempt "beyond a reasonable doubt," and the non-custodial parent only needs to prove each element of civil contempt by a "preponderance of the evidence," a much lesser evidentiary standard. The non-custodial parent should not only present evidence showing each specific violation alleged, but also evidence of the non-custodial parent's attorney fees and court costs. After the non-custodial parent has presented his/her case, then the custodial parent will present his/her case. There are defenses a custodial parent can assert, but those defenses are beyond the scope of this article. Once both sides have presented their evidence, the court will rule.
If the court finds that the custodial parent violated the court's final order, then the court can subject the custodial parent to the following punishments:
- (1) Incarceration of up to 6 months per violation (criminal contempt);
- (2) Fines up to $500.00 per violation (criminal contempt);
- (3) Incarceration continuing until the custodial parent complies with a specific order of the court (civil contempt);
- (4) Probation for no more than ten years provided the custodial parent complies during the probation period with the court's orders;
- (5) Additional periods of visitation for the non-custodial parent to make-up for the missed visitation caused by the custodial parent's violations; and
- (6) Attorney's fees and court costs.
Bear in mind though, the above punishments are only available if properly requested in the Motion for Enforcement.