Enforcement remedies for Texas temporary and final orders regarding children broadly expanded

Originally published by Michelle O'Neil.

A new Texas law broadly expands the options parents have for enforcing orders pertaining to children. A new law effective September 1, 2015, provides that a court may enforce “any provision” of either a temporary or final order rendered in a suit regarding a child. Further, the new law goes on to expand the availability of contempt of court to “any provisions” of either a temporary or final order rendered in a suit regarding a child.

The law also broadens the definition of a “temporary order” under the statute to include a temporary restraining order, standing order, injunction, and any other temporary order rendered by a court.

Contempt of court is a very strong remedy, usually involving jail time for the accused if he or she is found to have violated a court order. The length of jail time may be up to 6 months. Prior to this new law being passed, contempt was typically only available for enforcement of certain types of family law orders such as child support and possession orders. This new expansion of the law appears to open up contempt remedies to other types of provisions that would not traditionally have been enforceable by contempt.

For example, some court orders regarding children may order a parent to pay for college expenses of a child. Because the law in Texas does not require a parent to support a child beyond the later of the 18^th birthday or graduation from high school, the parent cannot be required to pay college expenses, making such an order a debt under Texas law. (Child support is not a “debt” under the law, making it subject to enforcement by contempt and jail time.) A debt cannot be enforced by contempt and jail time according to the Texas Constitutions.

The Texas Constitution provides, “No person shall ever be imprisoned for debt.” Tex. Const. art. I, §18. Therefore, the failure to comply with an order to pay a debt is not contempt punishable by imprisonment. Ex Parte Hall, 854 S.W.2d 656, 658 (Tex. 1993)(orig. proceeding). An adjudicated debt may be enforced by other legal processes, such as execution or attachment of property, but not by imprisonment of the debtor. In re Nunu, 960 S.W.2d 649, 650 (Tex. 1997).

So an order to pay college expenses would be a debt under the law, not enforceable by contempt. But, the new law purports to expand contempt to include other types of orders that would or should not be subject to jail time. I do not think that the new law will magically apply to the example I give. The Texas Constitution still trumps the Texas Family Code. But, there will be a lawyer out there who asks for it and a judge who grants it.

The remedy for a party who is jailed for contempt for violation of an order that should not otherwise be subject to contempt/jail enforcement must challenge that confinement through a writ of habeas corpus proceeding to the court of appeals. Writs of habeas corpus are very difficult to win because the contempt order or the order being enforced must be shown to be wholly void, but jailing someone in violation of the Texas Constitution would come under that category.

See the enrolled version here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today http://ift.tt/1jmpIwU
via Abogado Aly Website