Have any of you been driving on the highway or maybe a toll road around Houston and see the electronic message boards stating an AMBER Alert? These AMBER alerts are designed to help the public assist law enforcement officials and families locate missing children. You may also be signed up to receive notifications on your phone and even text message alerts in certain instances. All these alerts are designed to help us be aware of our surroundings in case we notice something out of the ordinary related to the missing child.
When we look at who is kidnapping or abducting children a troubling statistic appears most of the time the person who abducted the child is a parent. What this tells us is that the law treats kidnapping as a serious matter even if the person being kidnapped is your son or daughter. Parents who have custody orders in place can get frustrated with their circumstances and out of that frustration can come issues with kidnapping a child, especially in extreme cases.
Interference with child custody is a felony crime in Texas. It does not matter if your child is begging you to stay at your home with you. It does not matter that you want your child to stay with you. All that matters, in the eyes of the law, is what your child custody orders state. If you are holding your child in your possession past the point your court orders allow you to do so then you are not only in violation of the court orders in your family court setting but also on a criminal level.
If you violate the state criminal statute against kidnapping, then you can be prosecuted in a Texas criminal court for having done so. Parental kidnapping is a state crime that has no federal counterpart. This means that if your co-parent kidnaps your child and takes him or her into another state no federal officials would pursue the case. State of Texas law enforcement would then need to coordinate with local and state law enforcement in another state to retrieve your child and prevent further harm.
One interesting caveat to this discussion is that if your co-parent is not truly a co-parent, at least not anymore. By this, I mean that your co-parent has had their parental rights terminated by a court order previously. While that person would still be the biological parent to your child, he or she would not be the legal parent to him or her. That means that he or she would not be treated as a parent any longer and the situation would be handled like any other kidnapping case. In that event, there are federal laws that apply to kidnapping, and federal law enforcement agents and officers could intervene.
Kidnapping is a felony crime in Texas
With many child kidnapping cases in Texas, the kidnapping is usually a family law case of some sort. At issue in that child custody or divorce case will invariably be some sort of disagreement between the parents regarding the physical possession of the child. This is where the frustration and oftentimes anger boils over for one parent or the other. What is a difficult enough process in and of itself when it comes to child custody matters can be inflamed a great deal when kidnapping or unauthorized taking of the child occurs. This is enough to put both parents on red alert in terms of their willingness and ability to tolerate the bad behavior of their Co-parent.
In other situations, we find that even if no child custody or divorce case is pending, there is usually a child custody order in place that one parent does not agree with. Either he or she will feel like they got a raw deal in the initial family law case and are now expressing their frustration by taking the child without permission or that parent has been denied visitation and possession of their child and are now taking the child as a result. However, violations of a child custody order should be met with an enforcement petition rather than kidnapping or abduction. In the eyes, in circumstances of a frustrated parent, this may not seem like the best option.
Many of the parents who end up abducting or kidnapping their children are normal people who snap and lose their self-control in a moment of frustration or anger. While removing the child from school or forcibly taking the child from their co-parent is never justified, parents in this position oftentimes see no choice but to go to these lengths to protect their ability to have a relationship with their child. The ends do not justify the means and parents who choose to take this option will find that law enforcement can and will pursue them. Arrests take place every day over incidents that involve interference with child custody.
Let's examine what Texas Penal Code section 25.03 states as far as what interference with child custody looks like. The statute states that a person commits an offense if the person takes or retains a child younger than 18 years of age: when the person knows that the person's taking or retention violates the express terms of a judgment or order, including a temporary order, are they court disposing of the child's custody.
An offense is also committed when the person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child's custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a District Court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.
Houston is an international city just as Texas is an international state. Many of our neighbors were born in places other than Texas including many from Latin America. A parent commits an offense if the person takes a retains a child outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access without the permission of that person. in many divorce and child custody cases, special care is taken to protect children when international abduction has been an issue before or could be an issue in the future.
Finally, interfering with child custody occurs if a non-custodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian or person standing in the stead of the custodial parent or guardian of the child. A situation like this could be seen if a parent authors their child some sort of reward to stay with them through the week and not go home to their other parent after a weekend of visitation.
What are the potential penalties for parental kidnapping?
Now that we have established what parental kidnapping may look like in the context of child custody interference, we should discuss what the potential penalties are for you or your Co-parent if you engage in this kind of behavior. If we go back to the statute that we just finished sighting, we see that punishment looks like a state jail felony. This means that if you or your Co-parent are convicted of having committed this crime either of you would face up to two years in jail in fines of up to $10,000.
On the other hand, if the prosecutor can prove additional circumstances involving other felony charges related to your Commission of the original crime, then the sort of punishments that can be handed down to you will increase. We hear about aggravated crimes when those crimes are committed while utilizing a weapon such as a firearm. The same general principle applies to a case involving your child if you or your co-parent were to use a dangerous weapon to help get the child in your possession. Were you to physically harm or abuse your child during the kidnapping then this, as well, would add to the potential punishments for you or a co-parent.
Can parental rights be terminated in conjunction with interference with child custody charges?
Parental rights can become an issue not only in a divorce case but in a potential criminal case, as well. As part of a child custody interference case, a petition can also be filed asking the judge to terminate your or your Co parent's parental rights. When it comes to termination of parental rights, what can happen is that if your parental rights are terminated then you will have no legal relationship any longer with that child period, of course, you will still be the child's biological parent. However, in the eyes of the law, your relationship with your child would be no different than mine or the president of the United States. Namely, there will be no legal relationship. You would not be able to make decisions in the child's life, have an opportunity to participate in raising the child, or act in any other capacity that is parental.
As we saw earlier when it comes to parental rights termination having an impact on federal kidnapping charges, the same is true in Texas. If you or your co-parent have had your parental rights terminated previously about that child and then attempt to interfere with your co-parent’s custody of him or her then that parent would face increased scrutiny under the law. Rather than interference with child custody, the charge could be kidnapping, instead. This is true no matter if your child recognizes you as a parent or wants to be with you.
Another consequence of a kidnapping charge is that you may well have to register as a sex offender as a result. This can be quite surprising as it is at first difficult to see a direct relationship between being on the sex offender registry and interfering with child custody or kidnapping the child. All of this is based on a Texas court of criminal appeals case where a mother lost her child custody fight. Afterward, she took her young son to Mexico for three years. Eventually, she was arrested on kidnapping charges.
She was convicted on the kidnapping charge and because of that charge and the finding that her son was a minor at the time of the kidnapping she was required to register as a sex offender on the national sex offender registry. This occurred even though there was no allegation or finding of sexual abuse in the case. This alone will hopefully deter many people from attempting to kidnap their child or otherwise engaging in interference with hey period of possession belonging to a parent.
Are there any valid defenses to a parental kidnapping charge in Texas? While we have walked through many different situations involving kidnapping and interference with child custody, no matter how you slice it parental kidnapping involves the situation when a parent either takes the child or keeps custody of the child in violation of a court order. Court order set up limitations on periods of possession for both parents. A parent who engages in parental kidnapping violates one of those important provisions.
Even though a parent has a vast number of rights when it comes to making decisions for the child and the ability to have that child, those rights have limits. However, bear in mind that if there is no court order covering child custody provisions then there can also not be any charges associated with parental kidnapping if a parent takes the child even against the wishes of the co-parent. This may give you some perspective and that idea of the importance of filing a divorce where a child custody case if you are concerned your co-parent may engage in actions that amount to kidnapping.
Both parents have an equal right to be able to spend time with their children. This means that if, for example, your co-parent was to take your child against your wishes somewhere but you have not received any court orders in a childcare city situation then your Co-parent would be well within their rights to do so. As long as your Co-parent has legal rights to the child and they have not been terminated they are free to do what they would like with your child as far as keeping them in their possession. Kidnapping is a situational crime as much as a child custody interference crime.
Impacts on your life moving forward
If you have been arrested for incidents that involve your child and alleged acts of kidnapping, then you need to know that it is important for you to have experienced counsel both in the civil and criminal worlds. While there are elements of family law that are involved in the criminal component of this situation you need to have an experienced criminal law attorney to help defend you in the kidnapping or interference with child custody portion of your case.
By the same token, if you get to a position where your parental rights are in danger of being terminated then having an experienced family law attorney to walk with you through that process is also of extreme importance. When it comes to your parental rights, you can never be too safe. Even if you think that the termination of your parental rights is not justified a judge may have a different view on that situation. Therefore, you need to be able to defend yourself from the termination proceedings while you attempt to meet any challenges in the field of family law head-on.
You should consider the experience level of any attorney that you are interested in hiring either on the criminal or family law side of things. For instance, many attorneys will advertise themselves as being capable of representing you in a potential divorce, child custody, or parental rights case. However, you need to stop and ask yourself if that attorney has the requisite level of experience needed to be able to position you well for the rest of your life.
You will have many options to choose from when it comes to finding an attorney to represent you in any family law case. Your job is to interview as many attorneys as possible and to decide which attorney you most feel comfortable with and can best advocate for your positions in court.
Questions about the material contained in today's blog post? Contact The Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.