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Clarifying Visitation Orders: Answers to Common Questions

This article contains answers to common questions about clarifying visitation orders. This article was written by the Texas Legal Services Center. 

Why would I need to clarify my child custody order?

If your order confuses you, or the other parent, you should file a motion to clarify. If it contains contradictions, or it is too vague to follow, it might be a good candidate for clarification.  

What are some examples of when a motion to clarify is appropriate?

  • The original order says that for your weekend visitation, you should pick up the child from school on Friday on one page, but on another page, that same order might say that you’re supposed to pick the child up from the other parent’s house at 6 p.m. on Friday.
     
  • The original order says that the custodial parent must surrender the child to noncustodial parent (“NCP”) at the beginning of each period of possession of CP. Such an order does not make sense, because the custodial parent would be ordered to give the child to the noncustodial parent at the beginning of the custodial parent’s visitation time!
     
  • The order contains a finding that the noncustodial parent is not entitled to have the custodial parent’s home address—then states that exchanges of the child are supposed to take place at the custodial parent’s home address

What remedies are available in a clarification action?

The court can issue an order making the previous terms clear enough to be enforced.  There is some discretion allowed here. For example, in one case where the parties were disagreeing about when to exchange the child, the court ordered the custodial parent to provide the noncustodial parent with a school calendar.

 

When does a clarifying order take effect?

The clarifying order only applies moving forward, after the court signs it. You must give the other party a reasonable amount of time to start complying with the clarified portions.  If they still do not comply after a reasonable period, the clarifying order can be enforced by contempt.

What are the basic steps in filing a clarification action?

1. Learn the law about clarifications (in particular, read Texas Family Code section 157.421 through 157.426).

2. File a motion to clarify.

3. Have it served on the other party;

4. Prepare your clarifying orders

5. Attend a hearing,

6. The judge will grant or deny the motion for clarification and issue orders.

What’s the difference between a motion to clarify and a petition to modify?

A motion to clarify is NOT the same thing as modification. In a clarification action, the court cannot change anything fundamental in the order. For more information about modifying an order, click here.

What elements do I have to prove to clarify the orders?

That (1) the provision is ambiguous;  (2) the provision would be enforceable by contempt if clarified; (2) that the ambiguity is nonsubstantive.

How much time do I have to file a motion to clarify?

You have until no later than six months after the visitation order expires. A visitation order expires when the child turns 18, gets married, becomes emancipated, or joins the military. If there’s no reason to try to enforce the order anymore, then there is no need to try to clarify it. 

Where do I file a motion to clarify?

In the court of continuing, exclusive jurisdiction—meaning the court where the custody orders were issued (unless the matter has been transferred somewhere else).

COMMON MISTAKES AND HOW TO FIX THEM

Filing a clarification instead of a modification

If you filed a motion to clarify, but then realized that you actually want to change the orders, the easiest way to fix the mistake is by filing a nonsuit (dismissing the clarification suit). Then you file a petition to modify the parent-child relationship.

Trying to change something “substantive” about the orders.

You cannot use a motion to clarify to change the orders. For example, you can’t ask the court to insert terms prohibiting the other parent from moving out of state, if the original orders the court issued don’t include any geographic restrictions on the child’s residence.

Filing a clarification to fix a simple “clerical error” in the orders.

The point of a motion to clarify an order for possession and access is to correct the orders so that they are enforceable, because visitation is otherwise unworkable. If there is a clerical error, your approach depends on how long ago the judge signed the orders. If more than 30 days have passed (and no one filed a motion for new trial), you can file a motion for judgment nunc pro tunc to correct the orders. If the order is less than 30 days old, instead file a motion to modify the judgment. For more information, look to resources in your local law library. 

Trying to increase or reduce the number of visitation days, or change the date when you exchange the child

That’s more appropriate for a modification. If you made that particular mistake, file a nonsuit, or amend your petition.

The order IS clear, you just don’t understand it.

Talk to a lawyer.

You refuse to pay child support in an effort to get in front of the judge.

You have the right to clarify your orders in court.  Passively refusing to pay child support because you think that’s your only option for getting in front of the judge has serious consequences.  Additionally, that’s money you’re withholding from your child, not the custodial parent! This toolkit explains how to get to court to clarify your orders. If you’ve been refusing to pay child support and a child support enforcement action is filed against you, you should talk to a lawyer.