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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11916
Experience:  Licensed Texas General Practice Attorney
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I have a divorce decree that says I get 6-weeks during the

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I have a divorce decree that says I get 6-weeks during the summer and alternating holidays and spring break with my daughter, who is now 15-years-old. However, my former spouse has decided not to put my daughter on the airplane per the decree. What can I do to get her to comply with the law?
Submitted: 3 years ago.
Category: Family Law
Expert:  ScottyMacEsq replied 3 years ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

The reason they told you to get a private attorney is that this is a civil (family law is civil law, not criminal) matter. As such, the sheriff and police department do not have any jurisdiction to enforce this order unless and until there is a court order and citation for criminal sanctions imposed against the individual that is breaking the order.

ScottyMacEsq :

You would first need to file a motion to show cause and motion for sanctions to be imposed.

ScottyMacEsq :

And you would need a lawyer to do that. Only if it were clear that there were some sort of criminal action (such as an unambiguous kidnapping, etc..) as defined under Texas penal law, would the sheriff and/or police get involved. /

Customer: But is the mother not involved in Custodial Interference by not holding up her end of the bargain? To me, her actions render our agreement null and void.
ScottyMacEsq :

That might be what it seems like to you (and the judge might also see it that way) but until you go to court and get the court to modify that order, it still stands. The correct procedure at this point is to go to court, get the court to tell her to explain herself why she has ignored the decree (which she likely can't do) and issue appropriate sanctions (including attorneys fees, costs, etc... as well as potentially modifying the agreement).

ScottyMacEsq :

Now you can let your ex know that if she continues to refuse to abide by the agreement, that you will seek a complete modification of the custody agreement, seeking primary custody, etc...

ScottyMacEsq :

That may get her to fall into line.

ScottyMacEsq :

But you would still need to go to court to get it modified.

ScottyMacEsq :

...even if she is not in compliance. Her non-compliance is what can get you in the door of the courthouse in the first place and ask for such a modification.

Customer: She is saying that our daughter is 15 and old enough to decide if she does or does not want to visit. She is 15, a minor, still subject to child support, and as such old enough to be told she is getting on the airplane in accordance with the decree. If she is not going to comply, then our agreement is null and void - why should I comply? It's like being expected to pay for a car but the dealership does a contract but neglects to deliver the car.
ScottyMacEsq :

If you do not comply, the judge can throw the book at you as well. The KEY to winning in court is to show that you have complied with the court order, even after she has not.

ScottyMacEsq :

If you also don't comply, the judge can likewise issue sanctions against you, even if your noncompliance was in response to hers.

ScottyMacEsq :

Now she has absolutely no authority to determine when the agreement is null and void.

ScottyMacEsq :

Only the court could determine that.

ScottyMacEsq :

Likewise, you have no authority to determine when the agreement is null and void. Only the court could determine that.

ScottyMacEsq :

And unlike custody / visitation matters, if you do not pay child support, you can expect to be arrested.

ScottyMacEsq :

Criminal non-support IS a crime in every state of the union.

ScottyMacEsq :

Now you have a great case to take before a judge. But you have to take it before a judge to get it changed.

Customer: So, I don't understand "modify". Modify to what? It's a standard child custody agreement. It's amazing to me. They nail fathers who don't hold up their end of the agreement and call them bad fathers, but mothers get away murder. Her actions are criminal non-support.
ScottyMacEsq :

Legally speaking they're not. Criminal non-support means the non-custodial parent not making child support payments as he/she is ordered to. The child support / custody orders are seen as different issues in this regard.

ScottyMacEsq :

But modification can be based upon a material change in circumstances, and this certainly could apply.

Customer: Is this string of chat lines available to me when we are done? What is the material change in circumstances here? I want to see my daughter. I have strictly followed the divorce decree. Her end of the agreement is to put my daughter on the airplane. But i have to take her to court while she breaks the law while I go to jail? Tell me the righteousness there.
ScottyMacEsq :

With all due respect, there's the way that things ought to be and the way things are. You're telling me the way things ought to be (and I agree with you) but out of the interests of my time and yours, I'm telling you the way things are. Changes in custody / visitation / child support can be made with a material change in circumstances. One of these is one of the parents not complying with the original orders. Following the decree is vital to your case, especially when she is not. It shows that there is one parent that is trying to abide by the court decree, and one that is openly flaunting it. I am telling you that if you want to win this case, you will continue to abide by the court decree, while filing a Motion to Show Cause / Contempt as well as a Motion to Compel. The court can issue sanctions against her for attorneys fees, costs, time missed, etc...

ScottyMacEsq :

...as well as modify the original order more in your favor, if the court decides that it makes sense to do so and is an appropriate punishment for her actions.

ScottyMacEsq :

Again, I agree that her non-compliance should automatically relieve your obligation, but that is not the case in Texas (or any state for that matter) and therefore if you stop paying child support, you'll get arrested.

ScottyMacEsq :

Whether or not that is fair, that is the law.

Customer: And tom think, for 30 years I served in the Marine Corps for this. Thanks.
ScottyMacEsq :

My pleasure, and thank you for your service. We've come a long way for father's rights in Texas and America, but clearly we have further to go. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11916
Experience: Licensed Texas General Practice Attorney
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