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CONTEMPT AND ENFORCEMENT

 What is enforcement?

Any time a court orders something, it has the power to enforce that order by holding the offending person in contempt and punishing them by various means including fining, jailing, ordering them to post a bond.  This is called a “quasi-criminal” procedure since it can result in jail time. The most common enforcement procedures relate to children.

Nonpayment of Child Support

The Constitution of the United States declared that nobody could go to jail for not paying a debt.  Our forefathers fled England to escape debtors prison so this was an important point when they drafted the Constitution.  The one exception is child support.  If a person is ordered to pay child support and falls behind then they are in contempt of the court order and face the possibility of being fined or jailed.  They will also be ordered to pay the court costs and attorneys fees of whoever files the petition for enforcement. 

Defenses to Delinquent Child Support

If a person loses their job or their income decreases for some reason, they need to immediately file a petition to modify their child support and ask for a decrease because the court is going to expect them to follow the original court order until it is changed.  Having a good reason not to pay the child support may save the obligor from jail but they are still going to owe the back child support regardless. 

The obligor who is delinquent may escape being held in contempt and jailed or fined if they can show:

a.	lacked the ability to provide support in the amount orders;
b.	lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed; and
c.	attempted unsuccessfully to borrow the funds needed; and
d.	knew of no source from which the money could have been borrowed or legally obtained

If the obligor actually made the payments to the obligee directly and is not delinquent if you count those payments, then he or she can try and prove that to the court.  The lesson here is always make payments through the Texas Child Support Division so that there is a record of the payments. 

Enforcement of Possession

If a parent is being denied possession of his or her children according to the court order, they can ask the court to hold the managing conservator in contempt.  A parent cannot deny the other parent the right to see their children because they are delinquent in their child support.  These are two separate causes of action.

If a parent is being denied access to the children, he or she needs to make at least three attempts to exercise their possession strictly according to the court order.  That means physically going to the house, knocking on the door and demanding possession of the children, even if nobody is home.  Keep a diary and always take a witness each time this is done because the witness will need to testify in court that you were there and you tried to exercise your possession.  If the other parent tells you on the phone that you shouldn’t bother coming because they won’t be home – go anyway!  If you don’t try, the court isn’t going to help you.