Suits to enforce by contempt (jail time) are very difficult and highly technical suits because if jail time is a possibility then the respondent is afforded certain constitutional protections. Respondent’s don’t have to testify and the they don’t have to produce documents because of the 5th amendment right against self-incrimination.
This means that the party to bring the suit, the petitioner, has to prove the whole case themselves without any help from the Respondent.
A criminal contempt conviction for disobedience to a court order requires proof beyond a reasonable doubt of:
- a reasonably specific order;
- a violation of the order; and
- the willful intent to violate the order.
Ex parte Chambers, 898 S.W.2d 257, 38 Tex.Sup.Ct.J. 448 (Tex. 1995).
Proving a willful intent is usually the only simple element because such can be presumed when there is evidence that the respondent had notice of the order to be enforced. Id. Many enforcement actions are denied because the order is not specific enough. There will almost always be legal arguments over the specificity of the order which refer to In Re Slavin case. But that topic is for another day. This blog is about element #2, proving the violation of the order.
When proving the violation of a protection order, it is necessary that the person bringing the enforcement suit has done everything they are required to do in order to take possession of the child. This usually means being at the location on the right day and time that a possession exchange is to occur. The petitioner’s testimony is usually sufficient to prove this.
To prove that the Petitioner was actually denied access can be difficult, a few tips to help you prove you were denied are as follows:
- Call the police out. Sometime they want to take your complaint over the phone. This is not good enough. Politely ask them to come out and make a report. Ask them to put in the report that:
- you are present and the location;
- you are seeking to take possession of your child;
- Respondent is either not present or is present but won’t exchange the child.
- Sometimes an officer will write “Sam Jones is here at 123 blvd and he says that he is supposed to pick up the children, he says that the child’s mother is not here, he says that…. This is not a good report. The officer needs to put in the report what the officer sees with his own eyes, not what you are telling him/her. Be polite to them, it’s usually necessary to call them as witnesses and they won’t make a good witness if they think you are rude or arrogant.
- Take a video recording. Download an app which displays a date/time and location on a video screen and then record the exchange (or lack thereof). Do this discretely (preferably in a shirt pocket), or start your video and then record someone else’s phone to capture the date/time.
- Stop at a nearby gas station right before and right after the exchange and purchase something so that you have a time stamped receipt.
- and the NUMBER ONE piece of evidence is the respondent admitting that they denied you. If you have a text message where they acknowledge that they denied you this is your best weapon in court. It is in a way a means to force them to testify in court, regardless of the 5th amendment.
Remember that proving your case is essentially having to prove a negative. Court’s are very cautious about holding someone in contempt because appellate court’s reverse these decisions quite often. Collect as much evidence as you can and use it all in court.
Good luck and if you would like to consult on this matter further please use the link below to submit your information: https://www.beveridgelawfirm.com/contact/
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