Texas Motion for Contempt

Introduction

Key Things to Know

1. 1

   Texas calls this pleading a motion for enforcement, not a motion for contempt, and there is no statewide mandatory or official form. It must meet the content requirements of Family Code Section 157.002 and is filed in the same case, under the same cause number, as the underlying order.

2. 2

   For a motion to enforce a final child support or possession order, a final order against a party who has already appeared, or a temporary order, personal service of the motion and the notice of hearing must reach the respondent not later than the 10th day before the hearing (Fam. Code Sec. 157.062(c)); the statute does not specify calendar or business days. When contempt is requested, the court must order the respondent to personally appear (Sec. 157.061(a)).

3. 3

   Because incarceration is possible, the court must decide whether jail is on the table and, if so, advise the respondent of the right to a lawyer and appoint one if the respondent cannot afford it; appointed counsel gets at least 10 days to prepare, or 5 days if the respondent is already in custody (Sec. 157.163).

4. 4

   Each instance of contempt is punishable by a fine of not more than $500 or up to 6 months in county jail, or both (Gov't Code Sec. 21.002(b)), and an order imposing incarceration for civil contempt must state the specific conditions, a purge condition, on which the respondent may be released (Fam. Code Sec. 157.166(c)).

5. 5

   For a child support violation, the court must order the respondent to pay the movant's reasonable attorney's fees, costs, and expenses, a rule that usually cannot be waived once arrearages reach $20,000 or the respondent already has 3 or more prior contempt findings for denying possession or access (Sec. 157.167). Denied parenting time also carries a mandatory make-up remedy that doubles after 3 or more prior findings (Sec. 157.168).

6. 6

   An obligor accused of violating a child support order can raise a four-part inability-to-pay affirmative defense, proved by a preponderance of the evidence: no ability to pay, no property to raise the funds, an unsuccessful attempt to borrow, and no known source to borrow from (Sec. 157.008).

7. 7

   Do not withhold child support because the other parent denied parenting time, and do not withhold parenting time because support is unpaid; either can itself expose you to a contempt finding. This motion cannot modify support or custody, and the Office of the Attorney General's Child Support Division can enforce child support administratively as an alternative to filing.

Texas Requirements for Motion for Contempt

• Motion for Enforcement Filed in the Original Case

  The pleading is a motion for enforcement, filed in the court of continuing, exclusive jurisdiction, the same court that signed the underlying order, under the same cause number rather than as a new lawsuit (Tex. Fam. Code Sec. 157.001, 155.001).

• No Mandatory Form, But Required Content

  No statewide mandatory or official form exists. The motion must, in ordinary and concise language, identify the provision violated, state the manner of noncompliance, state the relief requested, and be signed by the movant or the movant's attorney (Tex. Fam. Code Sec. 157.002).

• 10-Day Personal Service Before the Hearing

  For a motion to enforce a final child support or possession order, a final order against a party who has already appeared, or a temporary order, personal service of the motion and notice of hearing must reach the respondent not later than the 10th day before the hearing date; the statute does not specify calendar or business days (Tex. Fam. Code Sec. 157.062(c)).

• Court Must Order Respondent to Personally Appear

  On filing of a motion requesting contempt, the court must set the date, time, and place of the hearing and order the respondent to personally appear (Tex. Fam. Code Sec. 157.061(a)).

• Right to Appointed Counsel When Jail Is Possible

  Because incarceration is a possible outcome, the court must determine whether jail is possible and, if so, advise the respondent of the right to counsel and appoint one if the respondent cannot afford it, with at least 10 days to prepare, or 5 days if the respondent is already in custody (Tex. Fam. Code Sec. 157.163).

• Jail Capped at 6 Months and $500 Per Instance, With a Purge Condition

  General contempt punishment caps each instance at a fine of not more than $500 or confinement of not more than 6 months in county jail, or both (Tex. Gov't Code Sec. 21.002(b)), and an order imposing incarceration for civil contempt must state the specific conditions on which the respondent may be released (Tex. Fam. Code Sec. 157.166(c)).

• Mandatory Attorney's Fees for Child Support Violations

  If the court finds a child support violation, it must order the respondent to pay the movant's reasonable and necessary attorney's fees, costs, and expenses, a rule that generally cannot be waived once arrearages reach $20,000 or the respondent has 3 or more prior contempt findings for denying possession or access (Tex. Fam. Code Sec. 157.167).

• Doubling Make-Up Possession Time After Repeat Violations

  For a denial of possession or access, the court must generally order additional periods of possession to compensate for what was denied; if the respondent has 3 or more prior contempt findings for denying possession or access, the make-up time must total double the periods denied (Tex. Fam. Code Sec. 157.168).

• Four-Part Inability-to-Pay Affirmative Defense

  An obligor may plead and prove, by a preponderance of the evidence, an affirmative defense to a child support contempt allegation: lack of ability to pay, lack of property to raise the funds, an unsuccessful attempt to borrow the funds, and no known source from which to borrow them (Tex. Fam. Code Sec. 157.008).