C.S.H.B. 1899 78(R)    BILL ANALYSIS


C.S.H.B. 1899
By: Nixon
Juvenile Justice & Family Issues
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

This bill adds provisions to the Family Code related to the prevention of
international parental child abduction.  The new subchapter advocates the
best interests of the child by providing a statutory basis to ensure
courts determine the risk of abduction in certain cases, and order
preventive measures based on that risk if the court deems it necessary.   

The recommendations within this bill are adapted from a study published by
the American Bar Association Center on Children and the Law, and from
numerous reports published and disseminated by the United States
Department of State's Office of Children's Issues; the United States
Department of Justice's Office of Juvenile Justice and Delinquency
Programs; the National Center for Missing and Exploited Children; and
other sources.  It is important to note that the recommended safeguards
have already been successfully utilized in some Texas family court cases
to discourage or prevent abductions in high risk cases.   

The primary problem today is that most Texas family courts remain unaware
or underestimate various "red flag" indicators and the need for
preventative safeguards. As a result, Texas children continue to remain at
high risk for international parental child abduction.  When the abduction
is to a foreign country, the return of the child is extremely difficult,
if not impossible in some cases-warranting more emphasis on preventing
such abductions before they occur.   

While existing federal law implements the provisions of the Hague
Convention on the Civil Aspects of International Child Abduction, which
provide remedies for the wrongful removal or retention of a child in cases
of international child abduction, many foreign countries are not parties
to or compliant with its enforcement.   

Existing United States and Texas laws prohibit the abduction of a child in
violation of the right of custody or access of a person.  However, many
foreign countries refuse to recognize United States custody orders.  A
large number of parents succeed in abducting children internationally
because exit controls in the United States are  nonexistent and some
foreign countries (including their embassies and consulates located in the
U.S.) issue passports to children they consider to be dual nationals,
despite United States court orders prohibiting such issuance.  Many of the
abducting foreign national parents are also United States citizens or
Permanent Residents who have resided in the United States for many years
and/or have successful jobs or businesses, leading courts to mistakenly
conclude they do not pose a risk.   

Among many foreign countries, there are no legal remedies to enable an
American parent to secure the return of a child to the United States or to
gain access to the child in the foreign country.  As a result, many
American parents have had their children literally stolen, with little
recourse available under the law.  Consequently, the United States
Department of Justice's Office of Juvenile Justice and Delinquency
Programs (OJJDP) recommends that state legislatures pass statutes to
prevent parental abductions.   

C.S.H.B.1899  would supplement current Texas family law to provide that,
in any child custody proceeding in which the court is made aware of
evidence indicating a possible risk of international abduction of the
child, the court shall consider certain factors ("red flags") to determine
whether safeguards are needed to prevent such an abduction.  If the court
determines that the need exists, it may take specified measures to
discourage or prevent the abduction of the child. 

 
RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.Amends Chapter 153, Family Code by adding Subchapter I, which
provides that if credible evidence is presented, a court is required to
make a determination as to whether there is sufficient risk of
international parental child abduction to warrant preventative measures.
The court can make such a determination on its own motion, or at the
request of either party. The court must consider  public policy and the
best interest of the child, as already defined under the Family Code, as
well as specific risk factors of international parental child abduction as
added by this Act.   

 To determine whether there is a risk of the international abduction of a
child by a parent of the child, the court shall consider evidence that the
parent has violated prior custody orders, made prior threats, or recently
engaged in planning activities to abduct or withhold access to the child;
the parent lacks financial incentives to stay in the United States; the
parent has a history of domestic violence or a criminal history; obstacles
to the location and return of the child; and the potential harm to the
child as a consequence of abduction.   
 
 If the court finds credible evidence that a risk of international
parental child abduction is present, the court shall then consider certain
additional factors, including whether the parent has strong ties to a
country that is not a party to or compliant with the Hague Convention on
the Civil Aspects of International Child Abduction, and whether the parent
lacks strong ties to the United States, regardless of whether the parent
is a citizen or permanent resident.   

 If the court finds credible evidence that a risk of international
parental child abduction is present, the court may also consider
additional factors, including the parent's citizenship status with the
United States Immigration and Naturalization Service and any prior
attempts at forgery or false evidence relating to various United States
identification documents, and aspects of the laws and practices in the
foreign country to which the parent has ties.  
     
Based on the court's determination of these risk factors, the court may
implement various safeguards to prevent an international parental child
abduction.  These steps would include, appointing the parent other than
the one who presents the risk of abduction as sole managing conservator to
enable him or her to obtain the full immediate assistance from law
enforcement in the event of an abduction; supervised visitation by a
visitation center or an independent organization (supervision by family
members, friends or acquaintances of the potential abductor parent is not
adequate); and various other restrictions and limits on visitation,
passports and travel.  

SECTION 2.The changes in law made by this Act apply to a suit affecting
the parent-child relationship pending in a trial court on the effective
date of this Act or filed on or after the effective date of this Act.  
   
SECTION 3.This Act takes effect immediately if it receives a vote of
two-thirds of all the members elected to each house, as provided by
Section 39, Article III, Texas Constitution.  If this Act does not receive
the vote necessary for immediate effect, this Act takes effect September
1, 2003.    


 EFFECTIVE DATE

September 1, 2003.


COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B.1899 modifies the original H.B.1899 by substituting "country" with
"United States" under Section 153.502(3) and (4), Family Code. Amends
changes to Section 153.502(4), to provide consideration of evidence that
the parent has forged or presented misleading or false evidence to obtain
a visa, passport, social security card, or any other identification card
or has made any misrepresentation to the United States government
regarding the parent's identity.  The substitute also changes "may" to
"shall." Eliminates subsection (A) and changes "(B)" to "(2)"under Section
153.502(b).  Additionally, the substitute adds language to subsection (c)
to provide that if the court finds that there is credible evidence of a
risk of abduction of the child by a parent of the child based on the
court's consideration of the factors in Subsection (a), the court may also
consider evidence regarding the following factors to evaluate the risk of
international abduction of the child by a parent. The substitute changes
"(C)" to "(1)," as well as provides additional language with respect to
forged or misleading evidence presented by the parent.  The substitute
further changes "(3)" to "(4)" under Section 153.502(c) and substitutes
the word "race" with "nationality" under 153.502(c)(4)(C)(ii) and (iii).
Additionally substitutes "signatory to or" with "party to"under
153.502(c)(4)(H), and deletes subsection (1) under Section 153.503.
C.S.H.B.1899 further substitutes "(A)" with "(1),"  "(B)" with "(2)," and
changes "(2)" to "(3),"  "(3)" to "(4),"  "(4)" to "(5)," "(5)" to "(6),"
"(6)" to "(7)," and "(7)" to "(8)."