Enforcement of Custody & Visitation
If the order to be enforced is a final order, the motion for enforcement is treated as a new lawsuit and the other party must be served with the papers by the process server as in other lawsuits.
A motion for enforcement must include specifics about the violations, such as the date, place, and time of each violation. Any person who is experiencing difficulty exercising their regular visitation should keep a record of each violation. If a pattern of past violations has occurred, the person seeking to enforce visitation may also allege that future violations of a similar nature may occur.
The person seeking to enforce visitation must file a motion, set a hearing on the motion, and if the motion seeks contempt, the notice of the hearing must be personally served on the alleged violator at least 10 days before the date of the hearing.
Enforcement of Temp. Orders v. Final Orders
An order for visitation of children is generally enforceable by contempt, meaning the person responsible for the violation may be ordered to serve time in jail for contempt of court, and/or pay a fine.
As a practical matter, at a first hearing for enforcement of visitation, a court generally will not find a violator in contempt and order them to jail. Instead, the court will often issue a stern warning about the consequences of continued violations or, if the violations are particularly aggravated, the court may find the violator in contempt but suspend the commitment to jail conditioned upon no future violations (a suspended jail commitment is essentially the same as probation). The courts are more concerned with obtaining compliance than with punishment. However, on a second and subsequent hearings on motions for enforcement of visitation, the violator may be ordered to serve time in jail.
If a person who has been personally served with the motion and notice of hearing fails to appear at the hearing, the court may grant a default judgment for the relief requested, except that the court cannot find the person in contempt if that person is not present before the court. Because a finding of contempt may involve incarceration in jail, due process requires that a person must be personally present before the court for the court to hold the person in contempt. If the person fails to appear at the hearing, the court may issue a writ (a “capias”, which is similar to a warrant for arrest) to have the person arrested and brought before the court. The capias must also provide for a bond that the defendant may post to be released from jail, conditioned on the person’s promise to appear at the next hearing without the necessity of additional personal service to that person.
Award of Attorney’s Fees
If the court finds that an order for visitation of children has been violated, usually the court will order the violator to pay the movant’s reasonable attorney’s fees and court costs incurred in connection with the enforcement, in addition to any other remedy. However, the court may waive the payment of attorney’s fees and costs if the court finds “good cause” to do so, and the court states the reasons supporting a finding of good cause.