Child custody is often one of the most contentious issues in divorce proceedings, and child abduction becomes an enormous concern in some cases. Parents who violate court orders by taking children to unauthorized locations can face criminal charges for parental kidnapping.
In some cases, parents can be arrested for unknowing violations of child custody orders. Any person involved in a child custody dispute as part of a divorce proceeding will want to make sure that he or she knows where he or she is legally able to take his or her child or children before doing so.
Lawyer for Parental Kidnapping in Houston, TX
Are you hoping to modify your child custody order in order to avoid possible parental kidnapping penalties in South Texas? You should contact Sydow Law Firm as soon as possible.
Michael Sydow is an experienced divorce attorney in Houston who represents clients filing for divorce in numerous communities in and around Harris County and Fort Bend County. Call (713) 622-9700 today to have our lawyer provide a complete evaluation of your case during a free, no obligation consultation.
Overview of Parental Kidnapping in Harris County
- What are the consequences of parental kidnapping offenses?
- How can a person avoid parental kidnapping charges?
- Where can I find more information about parental kidnapping in Houston?
Most cases of international parental kidnapping are resolved through the Hague Convention.
Under Texas law, one of the crimes a parent could be charged with for violating a child custody order is interference with child custody. Texas Penal Code § 25.03(a) establishes that a person commits interference with child custody if he or she 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, of a court disposing of the child ’s custody;
- 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; or
- 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 and without the permission of that person.
Under Texas Penal Code § 25.03(b), a noncustodial parent commits interference with child custody if, with the intent to interfere with the lawful custody of a child younger than 18 years, he or she 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. Interference with child custody is a state jail felony punishable by up to two years in state jail and a fine of up to $10,000.
When a person is accused of a violation of Texas Penal Code § 25.03(a)(2), it is a defense that the person returned the child to 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, within three days after the date of the commission of the offense. It is also an affirmative defense to prosecution under
Texas Penal Code § 25.03(a)(3) that the taking or retention of the child was pursuant to a valid order providing for possession of or access to the child or notwithstanding any violation of a valid order providing for possession of or access to the child, the actor ’s retention of the child was due only to circumstances beyond the actor ’s control and the actor promptly provided notice or made reasonable attempts to provide notice of those circumstances to the other person entitled to possession of or access to the child.
If a parent is charged with the actual crime of kidnapping under Texas Penal Code § 20.03, he or she is accused of intentionally or knowingly abducting another person (regardless of age). Texas Penal Code § 20.01(2) defines abduct as meaning to restrain a person with intent to prevent his or her liberation by secreting or holding him or her in a place where he or she is not likely to be found or using or threatening to use deadly force.
Restrain is defined under Texas Penal Code § 20.01(1) as meaning to restrict a person ’s movements without consent, so as to interfere substantially with the person ’s liberty, by moving the person from one place to another or by confining the person. Restraint is presumed to be without consent when the victim is less than 14 years of age or when the victim is younger than 17 years of age and is taken outside of the state and outside a 120-mile radius from his or her residence.
Kidnapping is a third-degree felony punishable by up to 10 years in prison and a fine of up to $10,000. Texas Penal Code § 20.01(b) does establish that it is an affirmative defense to prosecution for kidnapping that:
- the abduction was not coupled with intent to use or to threaten to use deadly force;
- the alleged offender was a relative of the person abducted; and
- the alleged offender’s sole intent was to assume lawful control of the victim.
When a parent is considering taking his or her child out of state, the surest way to make sure this complies with a court order may be to have the existing order modified. Texas Family Code § 156.001 establishes that a court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child.
Under Texas Family Code § 156.101, the court can modify an order that provides for the appointment of a conservator of a child, the terms and conditions of conservatorship, or the possession of or access to a child if modification would be in the best interest of the child and:
- the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order;
- the child is at least 12 years of age and has expressed to the court in chambers the name of the person who is the child ’s preference to have the exclusive right to designate the primary residence of the child; or
- the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
Texas Family Code § 156.006 also states that while a suit for modification is pending, the court cannot render a temporary order that has the effect of creating a designation or changing the designation of the person who has the exclusive right to designate the primary residence of the child, or the effect of creating a geographic area, or changing or eliminating the geographic area, within which a conservator must maintain the child ’s primary residence, under the final order unless the temporary order is in the best interest of the child and:
- the order is necessary because the child ’s present circumstances would significantly impair the child ’s physical health or emotional development;
- the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; or
- the child is 12 years of age or older and has expressed to the court in chambers the name of the person who is the child ’s preference to have the exclusive right to designate the primary residence of the child.
Texas Law on Parental Abduction | Laura Recovery Center — The Laura Recovery Center is a 501(c)(3) nonprofit organization founded in memory of Laura Kate Smither, a 12-year-old child who abducted near her home in Friendswood, Texas in 1997. The organization identifies its purposes as developing, maintaining, and freely offering abduction and runaway prevention education programs and the “Laura Recovery Center Manual – Conducting a Search for a Missing Child” as well as fostering a “Triangle Of Trust” among family, citizens, and law enforcement. On this section of the Laura Recovery Center website, you can view Texas laws relating to parental abduction.
28 U.S. Code § 1738A | Parental Kidnapping Prevention Act (PKPA) — The PKPA is the federal law that enforces jurisdiction in custody proceedings, which means that it trumps state law when there is a conflict between the two. Courts must adhere to the PKPA dictates whenever they are deciding whether to enforce a custody determination made by a court in another state or tribe or to exercise jurisdiction when there is a custody proceeding already pending in another jurisdiction as well as whenever there is a request to modify an existing custody or visitation order from another jurisdiction. View the full text of the PKPA, including key definitions.
Find a Parental Kidnapping Attorney in Houston, TX
If you need to modify a child custody order in Southeast Texas in order to take your child out of state or out of the country, it is in your best interest to quickly retain legal counsel. Sydow Law Firm helps individuals in Houston and surrounding areas of Fort Bend County and Harris County.
Houston divorce lawyer Michael Sydow is an experienced civil trial attorney and a member of the Houston Bar Association and the Federal Bar Association. You can have our attorney review your case and answer all of your legal questions when you call (713) 622-9700 or fill out an online contact form to schedule a free initial consultation.