Help! My Ex-spouse Kidnapped My Child

Each month, I have a consult about parental kidnapping. At least one parent has questions regarding their ex who has taken the kids and is refusing to return them.

One of the questions is, “How do I protect myself and my children from my ex-spouse violating the custody agreement?”

Good news is, your Houston divorce lawyer may be able to help you. They may 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:

  1. The State is the “Home State” of a child on the date the commencement of the proceeding.
  2. A court of another state does not have Jurisdiction or has declined Jurisdiction

Texas Family Code Section 152.102 defines “Home State” as the state where a child lived with a parent or a parent-like figure. It must be for at least six consecutive months before a child custody case starts. For children under six months old, it refers to the state where the child has lived since birth with a parent or parent-like figure.

This means Texas can issue orders about a child if they have lived in Texas for at least six months, or from birth if they are under six months old. This is valid as long as no other state has issued prior orders about that child.

Can a Parent Move to Another State and Modify Custody?

If a court has made an initial custody determination about a child, it keeps exclusive continuing jurisdiction under Texas Family Code Section 152.202 until one of two conditions is met:

  1. A Texas court finds that the child and at least one parent (or a parent-like figure) no longer have a significant connection with Texas. Additionally, substantial evidence about the child’s care, protection, training, and personal relationships must no longer be available in Texas; or
  2. A Texas court or a court in another state determines that neither the child’s parents nor any person acting as a parent currently live in Texas.

When deciding if it can modify an order from another state, a Texas court considers whether:

  1. The court of the other state decides it no longer has exclusive jurisdiction under section 152.202. Alternatively, the Texas court might be a more convenient forum under Section 152.207; or
  2. A Texas court or a court in the other state finds that the child, the child’s parents, and any parent-like figure no longer 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. This is known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). There are 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:

  1. Has continually lived in that state for 6 months or longer
  2. Was living in the state before being wrongfully taken elsewhere by a parent seeking custody in another state
  3. Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state.
  4. Has been abandoned, or 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:

  1. A temporary visitation order
  2. registration of the child custody determination (using procedures similar to those found in the Uniform Interstate Family Support Act),
  3. through an expedited enforcement proceeding,
  4. or through a warrant to take physical custody of a child.

Temporary Visitation

A Texas court may issue a temporary order enforcing the visitation provisions of an out of state order. This is true even if it does not have jurisdiction to modify a child custody determination.

Registration of Child Custody Determination

Under the UCCJEA, similar to UIFSA, an out-of-state order can be registered for predetermining custody determination enforceability. This registration can even occur in Texas without an enforcement request.

To register, one must file a letter requesting registration. Then submit two copies of the custody determination, and provide a sworn statement affirming the order’s unchanged status.

According to Texas Family Code Section 152.305(a), the registrant must provide their name and address. They should also the details of any custodial parent or guardian.

Upon receipt, the court files the determination as a foreign judgment. It then serves notice to the named individuals, giving them a chance to contest the registration.

The notice informs the respondents that the determination becomes enforceable on the registration date. They must request a hearing within 20 days to contest it. Failure to do so confirms the determination and bars future contests.

Per Texas Family Code Section 152.305(c), once registered, the determination is enforceable as a Texas custody decision.

However, it remains an order of the issuing state and is only modifiable under Section 152.203.

Expedited Enforcement Proceeding

A petition for expedited enforcement must be verified. You must attach certified copies, or copies of these, of all orders sought to be enforced to the petition. Include any order confirming registration of the order. The petition must state:

  1. whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
  2. 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;
  3. 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;
  4. the current physical address of the child and the Respondent, if known; and (e)
  5. 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. It may also enter any other orders necessary to ensure the safety of the parties and the child.

The court must hold the hearing on the next judicial day after service, unless impossible, in which case it will take place on the first possible judicial day. 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 finds, based on the Petitioner’s or another witness’s testimony, that the child faces immediate risk of serious physical harm or removal 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:

  1. When they know that it violates the terms of a judgment, a court order, or a temporary order that addresses the child’s custody;
  2. When a person, not awarded custody by the court of jurisdiction, knows of an ongoing divorce lawsuit or civil suit regarding the child’s custody and takes the child out of the geographical area or county without the court’s permission, they act against the court’s directives.
  3. 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
  4. 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.

Defenses

  1. 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.
  2. 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.
  3. Finally, the actor has an affirmative defense if they can prove that circumstances beyond their control, like a delayed flight or a car breakdown, caused the child’s retention.
  4. 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.

Call your lawyer if your ex is refusing to let you talk to or see your kids. Inform them if your ex refuses to provide you with information on your kids’ well-being. 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:

  1. 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;
  1. 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;
  2. 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;
  3. has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:
    1. quitting a job;
    2. selling a primary residence;
    3. terminating a lease;
    4. closing bank accounts;
    5. liquidating other assets;
    6. hiding or destroying documents;
    7. applying for a passport or visa or obtaining other travel documents for the parent or the child; or
    8. applying to obtain the child’s birth certificate or school or medical records;
  4. has a history of domestic violence that the court is required to consider under Section 153.004; or
  5. 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. It can pose unique challenges for the parent who’s left behind. One of our Houston divorce lawyers can provide you with case-specific advice if this might apply to you.

Under Texas Family Code section 153.501, if a party to the suit or the court itself identifies credible evidence of a child’s potential international abduction risk by a parent, the court must decide whether to implement one or more protective measures outlined in Section 153.503 to safeguard the child from parental abduction.

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:

  1. 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;
  2. 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;
  3. enjoin the parent or any person acting on the parent’s behalf from:
    1. disrupting or removing the child from the school or child-care facility in which the child is enrolled; or
    2. approaching the child at any location other than a site designated for supervised visitation;
  4. order passport and travel controls, including controls that:
    1. prohibit the parent and any person acting on the parent’s behalf from removing the child from this state or the United States;
    2. 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
    3. prohibit the parent from applying on behalf of the child for a new or replacement passport or international travel visa;
  5. require the parent to provide:
    1. to the United States Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy:
      1. written notice of the court-ordered passport and travel restrictions for the child; and
      2. a properly authenticated copy of the court order detailing the restrictions and documentation of the parent’s agreement to the restrictions; and
    2. 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;
  6. order the parent to execute a bond or deposit security. The amount must be sufficient to offset the cost of recovering the child if abducted by the parent to a foreign country;
  7. authorize the appropriate law enforcement agencies to take measures to prevent the abduction of the child by the parent; or
  8. include in the court’s order provisions:
    1. identifying the United States as the country of habitual residence of the child;
    2. defining the basis for the court’s exercise of jurisdiction; and
    3. stating that a party’s violation of the order may subject the party to a civil or criminal penalty or both.

I’m worried about parental kidnapping. What should I do?

Whether or not your ex-tries to move with your kids, your lawyer needs as much information as possible. Tell your lawyer if your ex-threatens to stop you from seeing your children or refuses to let you contact them. Your ex might have to face contempt charges and you may be able to change your custody agreement.

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