ENFORCEMENT
QUESTIONS AND ANSWERS
- I have specific days and times for visitation but my ex
refuses to allow me to see our child on those days.
What can I do?
File a motion for enforcement.
The Court may enforce by contempt a final order for possession of
and access to a child.
- May I withhold child support payments if I am not
allowed visitation?
No. The payment of child
support is not an exchange or condition precedent to you having
visitation. The proper procedure would be for you to file a motion
for enforcement. The Court may enforce by contempt a final order for
the payment of child support.
- I'm not receiving the child support as ordered, may I
withhold visitation from my ex?
No. A conservator's right to
exercise is not conditioned on whether he/she pays child support as
ordered. The proper procedure would be for you to file a motion for
enforcement. The Court may enforce by contempt a final order for
possession and visitation of the child.
- Where is the proper place to file a Motion for
Enforcement?
A motion for enforcement is
filed in the Court of continuing, exclusive jurisdiction. This is
likely the same Court that ordered the payment of child support and
visitation, unless jurisdiction has been transferred to another
Court.
- What are the defenses to a motion for enforcement of
possession or access?
An affirmative defense to
contempt for failure to comply with an order for possession or
access to a child that the complaining conservator voluntarily
relinquished actual possession and control of the child to you. In
order to avail yourself of this defense at Court you must raise it
and be able to prove it by a preponderance of the evidence.
- What are the defenses to a motion for enforcement of
child support?
The affirmative defenses to
contempt for failure to comply with an order to pay child support
are (1) that complaining conservator voluntarily relinquished actual
possession and control of the child to you for a period in excess of
any court-ordered periods of possession of and access to the child
and actual support must have been supplied by you; or (2) that you
lacked the ability to provide support in the amount ordered, lacked
property that could be sold mortgaged, or otherwise pledged to raise
the funds needed, attempted unsuccessfully to borrow the funds
needed and knew of no source from which the money could have been
borrowed or legally obtained.
- How quickly will I be able to go to Court in an
enforcement proceeding?
Most Courts are able to
schedule hearings on Motions to Enforce within 3-4 weeks of the time
they are filed.
- As part of an enforcement proceeding may I be awarded
additional visitation to make up for the visitation
that I've been denied by my ex?
Yes, a Court may order
additional periods of possession of or access to the child to
compensate for the denial of court-ordered possession or access.
- Can my ex be ordered to pay my attorney's fees if a
finding of contempt is made in a child support enforcement action
action?
Yes, if a finding of contempt
is made, the Court shall order that reasonable attorney's fees and
court costs be paid by the person in contempt. If the person in
contempt shows good cause why attorney's fees and court costs should
not paid, the Court can waive such payment
- As part of an enforcement action, may I be awarded
interest on child support arrearages?
Yes, interest accrues on
delinquent child support at the rate of 6% (six percent) simple
interest per year the date the support is delinquent until the date
the support is paid or the arrearages are confirmed and reduced to a
money judgment.
- What are other punishments that can be ordered if
contempt is found because of nonpayment of child support
or failure to allow visitation as per the Court order?
A person found in contempt may
be punished by confinement in jail for up to six months, a fine of
$500 for each violation and a money judgment for payment of
attorney's fees and court costs.
- My Court order indicates that my ex should keep be
advised of any change of home and work, address, and telephone
number, if he/she doesn't do this can the order be enforced by
contempt as well?
Yes.
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