What child custody legal rights does a father have? 1 Answers as of April 17, 2011

My brother had been trying to see his kids for a couple of years. His ex wont let him see his kids he can only talk to them when she feels like it. Whenever she wants my brother to see his kids, she thinks she runs the court. My brother pays his child support. She moved more then a 100 miles away and it say on paper that she has to bring the kids to my brother but she never has. What can you do about this?

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Reeves Law Firm, P.C. | Roy L. Reeves
The answer to your brother's problems lies in the Custody Orders and assuming they contain all the standard provisions, there is language that says TO ANY PEACE OFFICER (it should really be all caps) and continues on to give any Peace Officer in Texas the authority to affect the visitation schedule. Right below that provision is a Warning that any parent that violates the orders is subject to contempt (up to 6 months in jail and up to $500 fine) for each occurrence.

Everytime he calls and she says "no" that is one occurrence. Every day he is supposed to see the kids and she does not produce them, that is one occurrence. For example, if the orders say he can call the kids up to three times a week, and he calls on Monday - she refuses to let him speak to the kids, and he calls back on Tuesday with the same result, that is TWO contempt actions, not one. If she is supposed to produce the kids for visitation on Friday and he is to take them home on Sunday and she does not bring the kids, that is THREE contempts (one for each day). This adds up fast.

Now, it is important to understand that Court's do not use jail or fines in civil contempt lightly. The 6 months jail and $500 fine per occurrence is a maximum punishment that is very rarely handed down. The more likely action is a good chewing out the first time - the more contempt actions the worse the chewing out will be. The second time you bring an action to court (always show up with more than just one contempt occurrence) the Judge is very likely to order her to pay your brother's attorney's fees. The third time . . . well by this point, Judges have seen the pattern, they are not pleased and they get creative - ordering make-up time, attorney's fees, sometimes putting the offending party on probation (ie: sentence them to a jail term and suspending it with the understanding that the Judge will not see him/her again). As you can see the more times this occurs the stronger the Judge will react. In fact, several years ago, I had a case in which the Mother thought she knew everything and "ruled the court" as you put it and on the fourth round, we appeared and when the case was called, the Judge looked out, saw us there, recognized everyone and without hesitation asked me if my client wanted primary custody. This was a not so subtle hint that we should file a modification based on her actions. We did file the modification and it was a very short custody fight - one of the factors the Court must consider is which party will foster a strong healthy relationship between the kids and the other parent - the multiple contempts was sufficient for the Judge to find Mom was not that person and the Judge ultimately determines how much weight to give to each factor considered when awarding primary custody. This was an extreme case, and the only time I have even heard of such egregious conduct by the possessory parent.

Bottom line, your brother has rights, but the court will not monitor the matter for him. He has to enforce his rights. He should go pick up the kids himself, seek assistance from the local sheriff or police department if she refuses and at least get a report as evidence. Do this multiple times. Call the kids, a lot. Record the calls and her reactions. This is evidence. Ask her to follow the orders, ask her to bring the kids on a weekend as ordered by the court, send the request via text, e-mail and phone call. Print out the text, e-mail and phone records showing he asked (and hopefully her response saying "no"). This is evidence. Go see the kids, take a friend or family member (such as a brother who cares enough to ask questions on his behalf) as a witness to the attempt and her reaction. This is evidence. Then, when he has 2-3 or even more counts with evidence to support the allegations, file a motion for contempt and enforcement of visitation rights. Allege every instance - even if you have to pull out a calendar to calculate it, worst case, the Judge only finds contempt for the occurrences in which there is evidence/witnesses to support the claims. But it is a start. Then ask for make-up time and attorney's fees as sanction. He should get the make-up time, and depending on the responses and conduct of the mom in court, he may even get attorney's fees.
Answer Applies to: Texas
Replied: 4/17/2011
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