Each month I have a consult with at least one parent who has questions regarding their ex who has taken the kids and is refusing to return them.
One the questions I get is, “How do I protect myself and my children from my ex-spouse violating the custody agreement you agreed upon in court?” There is good news: your Houston divorce lawyer may be able to help you pinpoint risk factors and head off potential problems before they come up.
What State has the right to make orders regarding my child?
Under Texas Family Code 152.201 a new case can be established regarding a child if:
- The State is the “Home State” of a child on the date the commencement of the proceeding.
- A court of another state does not have Jurisdiction or has declined Jurisdiction
Under the Texas Family Code Section 152.102 Texas has defined “Home State” to mean “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.
In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent.”
This means that if your child has lived in Texas for at least six months or if under six months old has lived in Texas since birth then Texas can make orders regarding that child so long as no other state has made prior orders regarding that child.
Can a Parent Move to Another State and Modify Custody?
If a Court has made an initial custody determination regarding a child as described above, then that Court has exclusive continuing Jurisdiction under Texas Family Code Section 152.202 until:
- A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
- A court of this state or a court of another state determines the child’s parents, and any person acting as a parent do not presently reside in this state.
A court of this state when deciding whether or not it can modify the order of another state looks to see if:
- The Court of the other state determines it no longer has exclusive jurisdiction under section 152.202 or that a court of this state would be more convenient forum under Section 152.207 or
- A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.
Parental Kidnapping Prevention Act
The Parental Kidnapping Prevention Act of 1980 dictates that the child’s home state has jurisdiction over custody.
Most states follow a uniform law regarding the determination of appropriate state jurisdiction in custody matters known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and related statutes laws which enforce or set procedures regarding proper jurisdiction such as the Parental Kidnapping Prevention Act. Texas has adopted these statutes.
The Act states, among other things, that a court may rule on custody issues if the Child:
- Has continually lived in that state for 6 months or longer
- Was living in the state before being wrongfully taken elsewhere by a parent seeking custody in another state
- Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
- Has been abandoned: or is safe in the current state, but could be in danger of neglect or abuse in the home state
Enforcement of Other State’s Child Custody Determinations
Under the Texas Family Code Section 152.303(a)., Texas courts shall recognize and enforce a child custody determination of a court of another state if the issuing state exercised jurisdiction. This is in compliance with the Parental Kidnapping Prevention Act.
Enforcement may be through:
- A temporary visitation order
- registration of the child custody determination (using procedures similar to those found in the Uniform Interstate Family Support Act),
- through an expedited enforcement proceeding,
- or through a warrant to take physical custody of a child.
A Texas court may issue a temporary order enforcing the visitation provisions of an out of state order, even if it does not have jurisdiction to modify a child custody determination.
Registration of Child Custody Determination
As in UIFSA, the UCCJEA provides for the registration of an out of state order that can be used to predetermine the enforceability of a custody determination. It may even be registered in Texas without a request for enforcement.
The registration process requires that a letter requesting the registration be filed, along with 2 copies of the determination to be registered and a statement made under oath that the order sought to be registered has not otherwise been modified.
Texas Family Code Section 152.305(a) provides that the name and address of the person seeking the registration, along with the name and address of any parent or person acting as a parent who has been awarded custody or visitation must be provided.
Once received, the registering court must file the determination as a foreign judgment and serve notice on those persons named, providing them with an opportunity to contest the registration.
The notice must advise the Respondents that the determination will be enforceable as of the
date of the registration, that should they wish to contest the registration, they must request a hearing within 20 days of service of the notice; and that failure to contest the registration will result in the child custody determination being confirmed and will preclude further contest of the order.
Texas Family Code Section 152.305(c). Once registered, the child custody determination can be enforced as if it was a child custody determination of Texas.
However, it remains a child custody determination of the issuing state and is not subject to modification except as under Section 152.203.
Expedited Enforcement Proceeding
A petition for expedited enforcement must be verified, and certified copies, or copies of certified copies, of all orders sought to be enforced, as well as any order confirming registration of the order, must be attached to the petition. The petition must state:
- whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
- whether the determination sought to be enforced has been vacated, stayed, or modified by a court whose decision must be enforced, and if so, the identity of that court, the case number, and the nature of the proceeding;
- whether any other proceeding has been commenced that could affect the current proceeding, including any proceeding related to domestic violence, protective orders, termination, or adoption, and if such a proceeding has been commenced, the court, case number, and the nature of that proceeding;
- the current physical address of the child and the Respondent, if known; and (e)
- whether any other relief in addition to the immediate physical custody of the child and attorney’s fees is being requested and, if so, what is being requested, including any special request for assistance from a law enforcement agency.
On the filing of the petition, the court shall issue an order directing the Respondent to appear in court, in person, either with or without the child, at a hearing. The court may also enter any other orders necessary to ensure the safety of the parties and the child.
The hearing must be held on the next judicial day after service unless that date is impossible, in which case the court shall hold the hearing on the first judicial day possible. The court can only extend the hearing date upon the request of the Petitioner.
Warrant to Take Physical Custody of a Child
Under Texas Family Code Section 152.311 a petition for physical custody under this section may also on verified pleading, include an application for the issuance of a warrant to take physical custody of the child.
If the court, after hearing the testimony of the Petitioner or another witness, finds that the child is immediately likely to suffer serious physical harm or to be removed from the State, it may issue a warrant to take physical custody of the child.
Parental Abduction - Interference with Child Custody Charges in Texas
Texas is a state that has a particular law regarding the parental kidnapping. Under Texas Penal Code Section. 25.03, interference with child custody, a person commits this offense when he or she takes or retains a child under the age of 18:
- When they know that it violates the terms of a judgment, a court order, or a temporary order that addresses the child’s custody;
- When that person has not been awarded custody of the child of the court of jurisdiction and knows that a divorce lawsuit or a civil suit has been filed regarding the child’s child custody, and takes the child out of the geographical area, or out of the county without the court’s permission;
- They take the child outside of the United States as to deprive the other parent possession and access to the child without that person’s permission; or
- The noncustodial parent persuades the child to leave the custody of the other parent.
In Texas, an offense under this section is a state jail felony, punishable by 180 days to 2 years imprisonment, and a maximum fine of $10,000.
- It is a defense if the parent returned the child to the geographical area of the court’s jurisdiction within three days of committing the offense.
- It is an affirmative defense if the taking and possession of the child was pursuant to a valid court order, which provided for possession and access to the child.
- Lastly, it is an affirmative defense if the actor can prove that the retention of the child was only due to circumstances beyond their control; for example, if a flight was delayed, or if their car broke down.
- In the case of an unexpected delay, the actor must have provided notice or made reasonable attempts to provide notice to the other parent, letting them know of the circumstances that led to their retention of the child.
Risk Factors for International Parental Kidnapping
In most cases, the other the parent does not try to leave Texas or the country with the kids; they simply try to deny the other parent access to the children.
If your ex is refusing to let you talk to or see your kids or refuses to provide you with information on their well-being, call your Houston divorce lawyer immediately. We will be able to provide you with guidance on how to proceed. If your ex-takes off with your children call your lawyer as soon as you find out.
Another thing you can do Is call your local police and asking them to do a welfare check on the children. In many cases, they will not return your children to you without court intervention. However, they will go to the other parent’s home to investigate and let you know if your child is alright.
Under Section 153.502 of the Texas Family Code something things a Court will consider when determining “whether there is a risk of the international abduction of a child by a parent of the child, the court shall consider evidence that the parent:
- has taken, enticed away, kept, withheld, or concealed a child in violation of another person's right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent's conduct was necessary to avoid imminent harm to the child or the parent;
- has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person's right of possession of or access to the child;
- lacks a financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;
- has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:
- quitting a job;
- selling a primary residence;
- terminating a lease;
- closing bank accounts;
- liquidating other assets;
- hiding or destroying documents;
- applying for a passport or visa or obtaining other travel documents for the parent or the child; or
- applying to obtain the child's birth certificate or school or medical records;
- has a history of domestic violence that the court is required to consider under Section 153.004; or
- has a criminal history or a history of violating court orders.
International Parental Kidnapping
In some cases, parents attempt to go to their home countries and keep the children there. Both mothers and fathers are guilty of international child abduction, and it can pose unique challenges for the parent who’s left behind. One of our Houston divorce lawyers at the Law Office of Bryan Fagan, PLLC can provide you with case-specific advice if this might apply to you.
Under Texas Family Code section 153.501 “if credible evidence is presented to the court indicating a potential risk of the international abduction of a child by a parent of the child, the court, on its own motion or at the request of a party to the suit, shall determine under this section whether it is necessary for the court to take one or more of the measures described by Section 153.503 to protect the child from the risk of abduction by the parent.”
International Abduction Prevention Measures
If the court finds that it is necessary to take measures to protect a child from international abduction by a parent of the child, the court may take any of the following actions:
- appoint a person other than the parent of the child who presents a risk of abducting the child as the sole managing conservator of the child;
- require supervised visitation of the parent by a visitation center or independent organization until the court finds under Section 153.501 that supervised visitation is no longer necessary;
- enjoin the parent or any person acting on the parent's behalf from:
- disrupting or removing the child from the school or child-care facility in which the child is enrolled; or
- approaching the child at any location other than a site designated for supervised visitation;
- order passport and travel controls, including controls that:
- prohibit the parent and any person acting on the parent's behalf from removing the child from this state or the United States;
- require the parent to surrender any passport issued in the child's name, including any passport issued in the name of both the parent and the child; and
- prohibit the parent from applying on behalf of the child for a new or replacement passport or international travel visa;
- require the parent to provide:
- to the United States Department of State's Office of Children's Issues and the relevant foreign consulate or embassy:
- written notice of the court-ordered passport and travel restrictions for the child; and
- a properly authenticated copy of the court order detailing the restrictions and documentation of the parent's agreement to the restrictions; and
- to the court proof of receipt of the written notice required by Paragraph (A)(i) by the United States Department of State's Office of Children's Issues and the relevant foreign consulate or embassy;
- to the United States Department of State's Office of Children's Issues and the relevant foreign consulate or embassy:
- order the parent to execute a bond or deposit security in an amount sufficient to offset the cost of recovering the child if the child is abducted by the parent to a foreign country;
- authorize the appropriate law enforcement agencies to take measures to prevent the abduction of the child by the parent; or
- include in the court's order provisions:
- identifying the United States as the country of habitual residence of the child;
- defining the basis for the court's exercise of jurisdiction; and
- stating that a party's violation of the order may subject the party to a civil penalty or criminal penalty or to both civil and criminal penalties.
What should I do if I’m worried about parental kidnapping?
Whether or not your ex-tries to move with your kids, your lawyer needs as much information as possible to fight for your rights under Houston law. If your ex-threatens to stop you from seeing your children or actually refuses to let you contact them, tell your attorney right away. Your ex might have to face contempt charges and you may be able to change your custody agreement.
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