Parental Kidnapping Under Texas Law
In Texas, parental kidnapping cases are quite common. If a parent or conservator of a child under 18 years old takes the child into his or her physical possession in violation of a court order, the court may cite “interference with child custody.” In other words, it was not your turn to have the child (and a court order clearly stated so), but you took the child anyways without the other parent’s consent.
Under the Texas Penal Code, stating Offenses against family (parental kidnapping):
Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. (a) A person commits an offense if the person takes or retains a child younger than 18 years of age:
(1) 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;
(2) 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
(3) 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.
(b) A noncustodial 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.
What does the Texas Family Code Say About Interfering with Another Parent’s Visitation Times?
The penal (criminal) code above crosses into the Texas Family Code. The Texas Family Code states:
Sec. 42.002. LIABILITY FOR INTERFERENCE WITH POSSESSORY RIGHT. (a) A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.
(b) A possessory right is violated by the taking, retention, or concealment of a child at a time when another person is entitled to possession of or access to the child.
Not only is the person who commits this offense subject to state jail felony; anyone who knowingly helps to take or hide a child that is abducted from the other parent is subjected to state jail felony and a fine. See the Texas Penal Code below.
Sec. 42.003. AIDING OR ASSISTING INTERFERENCE WITH POSSESSORY RIGHT. (a) A person who aids or assists in conduct for which a cause of action is authorized by this chapter is jointly and severally liable for damages.
(b) A person who was not a party to the suit in which an order was rendered providing for a possessory right is not liable unless the person at the time of the violation:
(1) had actual notice of the existence and contents of the order; or
(2) had reasonable cause to believe that the child was the subject of an order and that the person’s actions were likely to violate the order.
Often times, there is a pending divorce action or custody suit. A decree or Order tells the parents their rights to have physical possession of their child and visitation schedule. Enticing, encouraging, or forcing a child to violate the Order are all offenses of parental kidnapping.
How to Avoid Receiving a Fine for Parental Kidnapping (Defenses).
First, prevention is better than cure. Avoid getting a fine or a sentence to jail in the first place. How?
- Follow the visitation schedules and court order. If you are not pleased with the schedule, you can file a Motion to Modify the Temporary Orders; also, you may seek other forms of modification from the Court. Do not take matters into your own hands. If the child is in danger with the other parents, seek assistance from local authority and request an emergency hearing. Bottom line, when there is a court order, you are require to adhere (follow it), and the best way to change a court order is to present your request to the Judge.
- Ask the other parent or conservator’s permission. Where there is an agreement by the parents with evidence of such agreements, there is a less likely chance, it was a situation of parental kidnapping. Be sure to keep evidence such as text messages and other proofs.
- There are other defenses to parental kidnapping:
- you returned the child to the geographical county of the child’s residence within three days of committing the offense;
- you were entitled to the possession of the child; (in other words, it was your time with the child and the other parent was the one withholding the child in violation of the court order);
- Or you fled with the child because of family violence.
You may seek civil damages under the Texas Family Code; alternatively, you may enforce the violated Order and seek additional time with the child, if the other parent harbored the child without your knowledge.
If you need assistance or think you have a parental kidnapping situation, you may call our office (832) 529-1255 or send us an email to email@example.com and one of our professionals will assist you.
The information provided above does not constitute legal advice and it does not form an attorney-client relationship. This is for informational purposes only. Contact an experienced attorney about your specific facts and situation; we provide case assessment and legal consultation with the legal strategies applicable to you and your loved ones. We are here to help.