Texas Penal Code 25.03 – Interference With Child Custody

WHAT IS INTERFERENCE WITH CHILD CUSTODY IN TEXAS?

Texas law prohibits interfering with child custody by keeping or taking a child in violation of a judgment or court order. Valid service of the judgment or order is not required, but the State is required to prove a person knew about the judgment or custody order prohibiting their possession of the child at the relevant time.

WHAT IS THE INTERFERENCE WITH CHILD CUSTODY LAW IN TEXAS?

Tex. Penal Code § 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.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor 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.

(c-1) It is an affirmative defense to prosecution under Subsection (a)(3) that:

(1) the taking or retention of the child was pursuant to a valid order providing for possession of or access to the child; or

(2) 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.

(c-2) Subsection (a)(3) does not apply if, at the time of the offense, the person taking or retaining the child:

(1) was entitled to possession of or access to the child; and

(2) was fleeing the commission or attempted commission of family violence against the child or the person.

(d) An offense under this section is a state jail felony.

WHAT IS THE PENALTY CLASS FOR INTERFERENCE WITH CHILD CUSTODY IN TEXAS?

Interfering with child custody is a state jail felony, punishable by 180 days to two years in a state jail facility.

WHAT IS THE PUNISHMENT RANGE FOR INTERFERENCE WITH CHILD CUSTODY IN TEXAS?

The punishment range for interfering with child custody, a state jail felony, is between 180 days and two years in a state jail facility, and a maximum $10,000 fine.

=WHAT ARE THE PENALTIES FOR INTERFERENCE WITH CHILD CUSTODY IN TEXAS?

A person charged with interference with child custody may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period between two and five years, with the possibility of extending the supervision term for up to ten years.

WHAT ARE THE DEFENSES TO INTERFERENCE WITH CHILD CUSTODY IN TEXAS?

A person charged with interfering with child custody will commonly assert a necessity defense.

• What is the necessity defense in Texas? Texas Penal Code Section 9.22 requires a defendant to show: (1) he believed the conduct was immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweighed, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Proving the necessity defense is difficult in a child custody interference case.

  For example, in Dewalt v. State, a mother fled with her son to Mexico after the child’s father was awarded sole custody. The mother and child were apprehended three years later, and she was charged with and convicted of interference with child custody. She claimed taking her son was necessary to protect him because, according to the defendant, her son was sexually assaulted by the father’s family. However, her conviction was affirmed, because there was no “emergency situation necessitating a split-second decision made without time to consider the law.”

• Does a person need to be served with the custody order to have legal notice? No. Texas law does not require the State to prove a defendant was served with a copy of an emergency protection order that removes a child from custody to establish that a person commits interference with child custody.

  In Hammack v. State, CPS obtained a court order to remove the defendant’s 16-year-old daughter from his care upon allegations of child abuse. The caseworker and police attempted to serve him, in person, several times, and told him he was legally required to relinquish custody. He hid at his mother’s house, and ultimately transported his daughter to Oklahoma. He was found guilty of interfering with child custody, and the Court of Criminal Appeals affirmed. The evidence showed he knew about the custody order and its requirements.

WHAT IS THE STATUTE OF LIMITATIONS FOR INTERFERENCE WITH CHILD CUSTODY IN TEXAS?

The limitation period for interfering with child custody, a state jail felony, is three years.

INTERFERENCE WITH CHILD CUSTODY IN TEXAS

Any conduct that violates a temporary or permanent order regulating custody of a child may constitute interference with child custody. This law aims to encourage parents and guardians to use the court system to modify existing orders, rather than to take matters into their own hands. The government likewise has an interest in ensuring a child’s safety and well-being, which is presumably provided for in a court order.

TEXAS INTERFERENCE WITH CHILD CUSTODY COURT CASES

The case law regarding interference with child custody in Texas shows appellate courts focusing on the circumstances surrounding the conduct, rather than the result. This means a person has committed interference with child custody the moment the person held or continued to hold the child in his or her possession in violation of a court order.

• What if a court order exists, but the parents and guardians have agreed not to follow it? As long as a valid court order exists, parents previously agreeing not to follow it does not negate the validity of the order. Thus, either parent may report the failure to follow a custody order should the other violate it.

  For example, in Charlton v. State, even though an agreed custody order established a father’s right to standard possession, the mother allowed the father to come over every day to see the child. When the mother moved the child out of state without the court’s permission, she interfered with child custody, despite the parents’ previous agreement to ignore the custody order. 334 S.W.3d 5 (Tex. App.—Dallas 2008, no pet.).