Failure to follow the provisions of an order regarding child support, custody, visitation, or other child related issues can have serious consequences. Those consequences can range from the violating party being ordered to pay the other person’s legal fees or providing makeup visitation from one end of the spectrum to being sentenced to jail or losing custody on the other end. It’s important that rules governing the court order are adhered to by both parties of the agreement. If you have trouble getting the other party to comply with a court’s order, then contacting a Houston Enforcement Lawyer should be considered an option.
Certain information must be contained in every motion for enforcement of child support, child custody, and visitation. For this reason, it is very important to keep accurate records. The motion must be signed by the movant or the movant’s attorney and must state:
- the provision of the order which has allegedly been violated;
- how the respondent has allegedly violated that provision; and
- the relief sought by the movant.
In the case of a motion to enforce child support, in addition to the above, the motion must also state:
- the amount owed as required by the order, the amount paid, if any, and the amount of arrearages; and
- if contempt is requested, the portion of the order allegedly violated and for each date of alleged contempt, the amount due and the amount paid, if any.
A motion for enforcement of child support may also include as an attachment a record of child support payments maintained by the local or state child support registry.
A respondent has certain affirmative defenses which he may plead in enforcement actions. An affirmative defense is a matter asserted by a defendant or respondent which, assuming the complaint is true, is a defense to it. An example of this would be failing to return the child at the end of visitation because the child had to be taken to the emergency room for an illness or the return was made impossible by inclement weather.
In actions for enforcement of child support, the affirmative defenses available to a respondent include:
- the movant’s voluntary relinquishment to the respondent actual possession and control of the child and that the relinquishment occurred for a time period in excess of any court-ordered periods of possession of and access to the child and that the respondent actually supported the child during those periods;
- lack of the ability to provide support in the amount ordered;
- lack of property which could be sold, mortgaged, or otherwise pledged as collateral to obtain a loan to make the required support payments;
- unsuccessful attempts to borrow money in order to make the required support payments; and
- lack of knowledge of a source from which the money to make the required support payments could have been borrowed or legally obtained.
If a court finds that party has been denied possession of or access to a child, it may order additional periods of visitation to compensate for the denial of court ordered possession or access. The additional periods of possession or access must be of the same type and duration of the possession or access which was denied, may include weekend, holiday, and summer possession or access, and must occur on or before the second anniversary of the court’s finding that possession or access has been denied. Furthermore, the person denied possession or access has the exclusive right to decide the time of the additional visitation.
In the case of an action for the enforcement of child support, a respondent may request reimbursement for any support actually paid during the time subject to an affirmative defense. The request for reimbursement may be in the form of a counterclaim or offset against the claim of the movant.
A child support lien arises by operation of law against real and personal property of an obligor for all amounts of child support due and owing, including any accrued interest, regardless of whether the amounts due have been determined by a court. This means that the obligee may make collections efforts against the obligor by having the obligor’s real or personal property seized and liquidated in order to satisfy the child support lien. This process is very complicated and therefore, is best handled by an attorney.
Contact the attorneys at Skillern Firm, to schedule a consultation to discuss your enforcement issue.