Disagreements in a marriage are not uncommon. Any married person can tell you that it is not difficult to run into a situation where spouses do not necessarily see eye to eye on a situation. This can be especially true when it comes to important and emotional subjects like the well-being of your children. A disagreement can quickly turn into an argument between spouses who disagree about how to handle a particular issue. However, what we are going to talk about in today's blog post from the Law Office of Bryan Fagan is what happens when an argument turns into something more serious.
Parental kidnapping is a subject that is about as serious- and dangerous- as it gets when it comes to Texas family law. Not feeling certain about how much you will be able to see your child after the divorce is one thing. Feeling uncertain about your ability to see your child at all is a completely different subject. Child kidnapping strips away from you as a parent any amount of autonomy and control that you may have over your child and their life. It is the sort of thought or idea that is enough to cause your breath to be taken away.
That the kidnapping could occur as a result of your spouse or co-parent is an almost unfathomable situation. As a parent, you are no more vulnerable to this sort of situation than when your child is with your co-parent. That person knows the schedule of your child as well as you do and knows where you are most vulnerable when it comes to potentially removing your child from Texas or even the United States. This is not something that you want to think about but it is necessary, especially if your spouse or co-parent has ties to another country.
This is one of the elements of parental kidnapping that is especially relevant in Texas. Texas not only borders another country but our residents are from a diverse array of countries. It isn't just Latin American countries that we border and are relatively close to, either. Take a drive around southeast Texas and you will see businesses and other evidence of people being from many different countries around the world. This only exposes you and your child more to the risks associated with parental kidnapping. I am not saying this to scare or intimidate you. Rather, I would like to present you with different scenarios to be aware of as you start to consider your potential exposure to parental kidnapping and how best to prevent this from happening to your family.
Of course, just because you live in Texas or have a co-parent with family around the world does not mean that your child is going to be kidnapped. This would be ridiculous to assert. With that said- more factors in play like this increase the likelihood that a kidnapping event could happen. The trouble is that once a kidnapping occurs it does you no good to think critically about these circumstances to determine how prepared you need to be. Rather, preparation only matters if you take the factors seriously and seek to avoid problems before they occur. That is the purpose of today's blog post from the Law Office of Bryan Fagan. We want you to be prepared so you can take action if that becomes necessary.
Parental kidnapping in detail
Parental kidnapping is against the law in Texas. If your child is kidnapped, whether by your spouse, co-parent, or another person, that incident violates the criminal laws of Texas. As a result, even if you are going through a divorce or child custody case there will be a criminal case that is opened if your child is kidnapped. What we need to figure out is how a parental kidnapping is defined in Texas.
If a co-parent takes your child, who is also under the age of 18, away from you in violation of a court order then that parent can be charged with kidnapping under the Texas Penal Code. It does not matter if these are temporary orders that were violated by your co-parent or if they are final orders from a prior family law case. Sometimes a parent who goes through a difficult family law case will not see any other option but try and do something drastic to get what they want out of the situation. Going through a divorce with someone like this is a dangerous situation.
Being named as a parent who has primary conservatorship rights can only do so much to protect your child when he or she is at school during the day while you are working. In the same way that your co-parent cannot remove your child from school without your permission to take him or her on a vacation, the same principle applies to your child being removed from school and taken to a foreign country. It still violates the court orders and you need to be vigilant about the risks presented to you and your child in this regard. You and your co-parent are going to be expected to follow the possession and visitation guidelines as outlined in your orders. You should include specific provisions about how to account for your child's passport as well as attempts to take your child to a foreign country without your permission.
There are an array of circumstances that the law in Texas holds out as parental kidnapping. First and foremost, kidnapping of your child is possible even though it is your child. If your co-parent knows that he or she is taking your child against the terms of a court order, then that is the most basic form of parental kidnapping. Next, if your co-parent has not been awarded custody of your child yet but a court order is pending or upcoming, and then a parental taking occurs and your child is removed outside the jurisdiction of that family court then a parental kidnapping has also occurred.
Your co-parent could put themselves in a position where they could face additional hardships if found guilty of parental kidnapping. Using a firearm or committing child abuse while going about the kidnapping could put your co-parent in a position where more time could be added to their jail sentence as well as additional fines.
What happens if there are no court orders in place
One of the main questions that a person could have in your situation is what happens if you have no court orders in place? Meaning, your co-parent and you have never been through a family law case and therefore have no court orders that impact your family. In a situation like that would you still be able to count on the law to assist you in discouraging your co-parent from trying to kidnap your child? This is a valid question to ask given that, in the situation that I just outlined, there are no differences between the parental rights that you have concerning your child and the parental rights of your co-parent. Both you and your co-parent would have a right to access and possess your child whenever you want so long as neither of you has had your parental rights terminated.
If you were concerned about the safety of your child it would be reasonable for you to contact law enforcement to see if they can come to your aide. Calling up the police is something that many parents would do in a situation where they believe that their co-parent was in the process of trying to remove their child from the country. What most law enforcement officers called into a situation like this would ask for is a copy of your court orders. At this point, at least in this hypothetical situation, you would have to say that you didn't have any.
The likely response from law enforcement would be to tell you that this is a civil matter that you are dealing with and that your best course of action would be to go to court and obtain some court orders that will help you protect your child. While this may be the truth, it won’t do much to help you feel better about your situation or give you peace of mind. On the contrary, what you are going through at that moment is a truly uncomfortable situation. You know that your co-parent is going to have opportunities to do something with your child in the future such as remove him or her from school or even from your home without your permission. You cannot afford to wait much longer to do something to protect your child but that is, apparently, the situation that you will find yourself in at the moment.
The other side of the coin is that if you can provide law enforcement with some doubt as to the immediate safety of your child then you may be able to get somewhere as far as convincing them to move forward with contacting your co-parent. However, if your point is more that you have concerns over the well-being of your child then you are going to be in a difficult position to be sure. In that case, rather than contacting another form of law enforcement or even contacting a criminal law attorney, your best bet is to contact a family law attorney to see if you can get the ball rolling on a divorce or child custody case as soon as possible.
When your child has already been removed from your home or school and you have no way of knowing where he or she is then you should contact both a family attorney and law enforcement. Law enforcement can create a police report and begin investigating the situation. A family law attorney can help you to file a child custody or divorce case and then work to obtain a police report that can be the basis for an emergency hearing with the judge in your case. You can try to obtain either a protective order or temporary orders that permit you to keep your child with you and withhold possession from your co-parent.
One of the first things that you and your co-parent should think about if you are not married and not planning on remaining in a relationship after the birth of your child is whether you will need to start negotiating a court order for custody as soon as possible. You can even work to get this done before the child is born. That way, as soon as the baby comes, there will be a court order in place that establishes custody, visitation, access, and everything else that is relevant to a new family in those circumstances. While you cannot have an official court order set up until the child is born you can create the framework of an agreement that only needs to be put into the correct language and signed off on by a judge. The beauty of doing things this way is that you will have an enforceable order sooner rather than later. When it comes to concerns over parental kidnapping you probably don't have a moment to spare so this type of advanced thinking and planning would seem to be an absolute must.
Family violence is a key part of the equation when it comes to having a protective order granted in your situation. To do this you will need to prove that family violence has occurred in the past or that it is very likely to occur in the immediate future. This would give a judge reason to consider granting the request for an emergency protective order which could give you the basics that you need to contact law enforcement so that they can get involved in the situation and take action to protect your child.
What you want to avoid is a situation where your co-parent removes your child from the State of Texas and takes him or her to another state or even to another country. Different families operate in different ways but I would imagine that this type of action on behalf of your co-parent would send up warning signals like crazy when it comes to their propensity or willingness to do things that are not only dangerous but disrespectful of you as a parent. On top of that, you need to consider that as a parent you have few options to lean up against if you do not have a court order in place which puts into writing the beginning and end points for visitation and conservatorship.
Taking action immediately is the best course that you can take when it comes to your daily life with your children. Do not assume that your co-parent is going to wise up and begin to act reasonably after a few days or even a few weeks. Even if your co-parent has done things like this before and even if you can speak to your child wherever he or she is, this is not something that you should take lying down. Rather, it is a good decision for you to plan out what you need to see happen and then work with an experienced family law attorney to take the next step and initiate a court case that can protect your rights and your children.
Acting quickly increases the chances that you have of getting your child back. The longer that you wait the more likely it will be that your child ends up gone for an extended time. What country your child is taken to will impact the ability of law enforcement and the courts of the United States to pull your child back. Many countries have no regard for the laws of the United States and view situations involving parental kidnapping to be a private matter between two adults that disagree over how best to parent their child. If you are not a citizen of the country where your child was taken this puts you at another disadvantage when it comes to this subject.
All in all, parental kidnapping is an intimidating problem to face but it is not as if you have no options to consider when it comes to how to proceed. However, the options that you do have in front of you are best considered if you take advantage of them as soon as possible rather than waiting around. Situations tend to get worse over time when it comes to uncertainty surrounding your child. Rather than put yourself in that situation you can speak to an experienced family law attorney with the Law Office of Bryan Fagan to help your family develop a plan for how to move forward if a parental kidnapping occurs.
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.
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