Make-Up Time in Texas Possession and Access Enforcement Actions

When a parent is denied court-ordered possession or access by the other parent, the court has discretion to order additional periods of possession or access to make up for that time.  Tex. Fam. Code § 157.168. These additional periods of possession of access must be the same type and duration as what was denied, may include weekends, holidays, and summer, and must happen by the second anniversary of the date possession or access was denied.  A father recently challenged an enforcement order that did not award him make-up time for the time he was denied.

When the parties divorced, the court appointed them joint managing conservators of the children and granted them equal possession and joint authority for decision-making.

Enforcement Action

The father filed an enforcement motion in September 2020, alleging the mother failed to turn the children over to him twice.  He make-up time as well as attorney’s fees and costs.  He subsequently added twelve more alleged violations occurring after his original enforcement motion was filed.  He also alleged the mother did not get his agreement or inform him that the daughter changed schools.

According to the appeals court’s opinion, the father testified he had possession of the fourteen-year-old daughter and ten-year-old son on alternating weekends and Monday through Wednesday afternoons.  He said the children were not surrendered to him when he went to pick them up on September 4, 2020 and he was denied that entire visitation period.  He testified the same thing occurred for a number of other visitation periods after that.  He testified he waited about 30 minutes outside each time.  He testified he did not have either child for their birthday.  He said he had not had his scheduled possession since mid-September.

He testified he learned in October the daughter was no longer enrolled in her middle school and had been enrolled in an online preparatory school. He testified the mother had not informed him of or asked his consent to the change in schools, even though the decree required mutual consent.

The father testified they followed the possession schedule before September 2020.  He acknowledged the children normally stayed with the mother during school days after remote learning began in the spring of 2020.   He admitted the daughter was not staying with him for all of the scheduled time before August.  He denied, however, that the son only stayed with him a couple of nights per week.

The mother testified the daughter told her the father approved her changing schools. The mother testified she was worried about the physical and emotional safety of the children when they were with their father because of how they described their feelings about spending time with him.  She saw her daughter crying after an incident in late August 2020.  She said the children were afraid to go back to him after that night.  She filed a report with CPS and petitioned to modify possession.

She said they had “very loosely” followed the schedule before that incident.  She said the children went to the father’s when they asked to do so.  She said when remote learning started, they did remote learning from her home “almost exclusively.” She said the daughter went about once a week and the son a couple of times.  She said the father threatened to move if the children did not want to be with him. The mother testified they did not hear from him for nine days after the incident in August. She said she thought he relinquished his possession.

The father provided evidence of $21,772.50 in attorney’s fees.

The trial court found the mother failed to surrender the children, violating the decree, thirteen times between September through November 2020.  The trial court also found the mother violated the decree related to the change of the daughter’s schools.

The court found her in criminal contempt and ordered her 179 days in county jail.  It also found her in civil contempt and ordered her to be confined for not more than 18 months or until she complied with its orders to surrender the children at his possession times, to not interfere with his possession or access, and to follow the terms of the possession and access order in the divorce decree.  The trial court suspended the confinement, ordering the mother to be placed on community supervision for two years, if she did not further violate the decree.  The trial court awarded the father $740 in fees, expenses, and costs, plus interest.

Attorney’s Fees

The father appealed, arguing the trial court abused its discretion in finding $740 was a reasonable award for fees and costs.  Pursuant to Tex. Fam. Code § 157.167, the movant in an enforcement proceeding is entitled to reasonable fees and all court costs if the court finds the other party failed to comply with a possession and access order.  The court may waive the requirement for the respondent to pay fees and costs for good cause shown, but the court must state the supporting reasons for its finding.

The father provided evidence of the hourly rates and hours billed by his legal team, but the invoices were heavily redacted.  They did not show which services were related to the enforcement proceeding and which were related to the mother’s modification proceeding.  The cases were filed just two weeks apart, so services provided during the time frame in question could be related to either proceeding.  The appeals court pointed out the mother had prevailed in the modification proceeding, but the trial court had not awarded her fees.  The appeals court also noted the father had rejected the mother’s suggestion the two matters be heard together, arguing they were “distinctly different.”  They were not so intertwined that it would be impossible to distinguish the services provided for each.  With the father having the burden to prove his reasonable fees, the appeals court did not find an abuse of discretion in the trial court’s award.

Make-up Time

The father also argued the trial court abused its discretion when it did not award him make-up time.   The appeals court pointed out, however, that a court is not required to order make-up time under Tex. Fam. Code § 157.168.  The statute provides that the “court may order additional periods of possession of or access . . .”  The appeals court noted that there was evidence that the parents had not strictly followed the possession schedule in the decree before the time in question. The appeals court also noted that the trial court had modified the schedule and limited the father’s possession time until he completed counseling.  The appeals court concluded there was no abuse of discretion in the trial court’s decision not to award make-up time to the father.

The appeals court affirmed the trial court’s enforcement order.

Contact a Skilled Texas Custody Attorney

The experienced Texas custody lawyers at McClure Law Group can help parents seek enforcement of  court-ordered possession or access.  If you are having a dispute over visitation, contact us online or at 214.692.8200 for a consultation.

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