Courts regularly award possessory rights related to a child through divorce decrees and custody orders. Unfortunately, problems can arise after this order when one of the parties violates the order by denying the other party access to the child when it is his or her period of possession.
When a person takes, retains, or conceals a child at a time when another person is entitled to possession or access, they are in direct violation of a court order. Oftentimes, these violations occur when it is time to transfer the child from one person to another. This happens when the person in possession of the child absconds with the child, refuses to transfer the child to the other person, or gives the child to someone other than the person who is entitled to possession in order to conceal the child’s whereabouts. This situation can be incredibly frustrating for a person with a rightful claim to possession of the child.
Aiding or Assisting Interference with a Possessory Right.
These violations are not always done alone, and when another person aids or assists in violating another party’s possessory rights, this person may also be liable. This occurs when another person takes affirmative actions to assist the violator in wrongfully taking, retaining, or concealing the child, such as by providing money, transportation, or other necessities or lying about the location of the child. There is generally no duty to inform, so a person is not liable if they simply knew that another person planned to deny a possessory right, but they did not take any acts in assisting them. However, if a person is questioned in court about the party’s violation or intention to violate the other party’s possessor right, then there is a duty to disclose any knowledge that a party intends to deny possession. The law requires that a person have actual or constructive knowledge of the possession order and that the party’s actions will violate that order. Parties to the proceedings will always have actual knowledge of the order.
These situations are frustrating, but thankfully the Texas Family Code provides a remedy for this situation. It is imperative to stay calm and avoid using self-help remedies. The law not only provides an enforcement mechanism, but also allows a party who is successful in defending against the other person’s attempt to deny possession to collect costs and expenses for locating the child, recovering possession, enforcing the order, and attorney’s fees related to the case. In extraordinary cases, a person may even recover for mental suffering and anguish or exemplary damages.
If you are being denied your rightful possession of your child, do not hesitate to reach out to one of our experienced Kirker | Davis family law lawyers today. We can help walk you through the options available to you to enforce and protect your rights and help develop a case strategy to do so.
Christopher M. Kirker is a Partner and Trial Attorney at Kirker Davis for complex family law litigation, primarily high-net-worth Texas divorce, custody, division of property, business ownership litigation, and trial consulting. Education: Baylor University School of Law, cum laude, J.D. (2010)
Chris M. Kirker
Years of Experience: +13 years
Christopher M. Kirker is a Partner and Trial Attorney at Kirker Davis for complex family law litigation, primarily high-net-worth Texas divorce, custody, division of property, business ownership litigation, and trial consulting.
Education: Baylor University School of Law, cum laude, J.D. (2010)