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A BILL TO BE ENTITLED
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AN ACT
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relating to adoption of the Uniform Child Abduction Prevention Act. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle B, Title 5, Family Code, is amended by |
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adding Chapter 163 to read as follows: |
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CHAPTER 163. UNIFORM CHILD ABDUCTION PREVENTION ACT |
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Sec. 163.001. SHORT TITLE. This chapter may be cited as the |
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Uniform Child Abduction Prevention Act. |
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Sec. 163.002. DEFINITIONS. In this chapter: |
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(1) "Abduction" means the wrongful removal of a child |
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to another state or nation or the wrongful retention of a child in |
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another state or nation. |
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(2) "Child" means an unemancipated individual who is |
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less than 18 years of age. |
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(3) "Child custody determination" means a judgment, |
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decree, or other order of a court providing for legal custody, |
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physical custody, or visitation with respect to a child. The term |
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includes a permanent, temporary, initial, and modification order. |
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(4) "Child custody proceeding" means a proceeding in |
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which legal custody, physical custody, or visitation with respect |
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to a child is at issue. The term includes a proceeding for divorce, |
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separation, neglect, abuse, dependency, guardianship, paternity, |
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termination of parental rights, and protection from domestic |
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violence. |
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(5) "Court" means an entity authorized under the law |
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of a state to establish, enforce, or modify a child custody |
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determination. |
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(6) "Petition" includes a motion or its equivalent. |
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(7) "Record" means information that is inscribed on a |
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tangible medium or that is stored in an electronic or other medium |
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and is retrievable in perceivable form. |
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(8) "State" means a state of the United States, the |
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District of Columbia, Puerto Rico, the United States Virgin |
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Islands, or any territory or insular possession subject to the |
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jurisdiction of the United States. The term includes a federally |
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recognized Indian tribe or nation. |
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(9) "Travel document" means a record relating to a |
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travel itinerary, including a pass and a reservation for |
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transportation and accommodations. The term does not include a |
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passport or international visa. |
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(10) "Wrongful removal" means the taking of a child |
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that breaches a right of custody or visitation given or recognized |
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under the law of this state. |
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(11) "Wrongful retention" means the keeping or |
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concealing of a child that breaches a right of custody or visitation |
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provided or recognized under the law of this state. |
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Sec. 163.003. COOPERATION AND COMMUNICATION AMONG COURTS. |
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Sections 152.110, 152.111, and 152.112 apply to a proceeding under |
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this chapter. |
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Sec. 163.004. ACTIONS FOR ABDUCTION PREVENTION MEASURES. |
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(a) A court on its own motion may order abduction prevention |
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measures in a child custody proceeding if the court finds that the |
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evidence establishes a credible risk of abduction of the child. |
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(b) A party to a child custody determination or an |
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individual or entity having a right under state law to seek a child |
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custody determination for the child may file a petition seeking |
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abduction prevention measures to protect the child under this |
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chapter. |
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(c) An individual or entity entitled to bring an action |
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under Subsection (b) may file a petition seeking abduction |
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prevention measures with respect to a child who is not yet the |
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subject of a child custody determination. |
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(d) A prosecutor or public authority designated under |
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Section 152.315 may petition for a warrant to take physical custody |
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of a child under Section 163.009. |
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Sec. 163.005. JURISDICTION. (a) A petition under this |
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chapter may be filed only in a court that has jurisdiction to make a |
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child custody determination with respect to the child at issue |
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under Chapter 152. |
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(b) A court of this state has temporary emergency |
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jurisdiction under Section 152.204 if the court finds a credible |
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risk of abduction. |
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Sec. 163.006. CONTENTS OF PETITION. A petition for |
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abduction prevention measures must: |
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(1) be verified; |
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(2) include a copy of an existing child custody |
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determination, if any, and if available; |
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(3) specify the risk factors for abduction, including |
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the relevant factors described by Section 163.007; and |
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(4) subject to Section 152.209(e), if reasonably |
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ascertainable, contain: |
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(A) the name, birth date, and gender of the child |
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at risk for abduction; |
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(B) the customary address and current physical |
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location of the child; |
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(C) the identity, customary address, and current |
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physical location of the respondent; |
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(D) a statement of whether a prior action to |
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prevent abduction or domestic violence has been filed by a party or |
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other individual or entity having custody of the child, and the |
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date, location, and disposition of such an action; |
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(E) a statement of whether either party to the |
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action has been arrested for a crime related to family violence or |
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child abuse, and the date, location, and disposition of such a case; |
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and |
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(F) any other information required to be |
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submitted to the court for a child custody determination under |
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Section 152.209. |
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Sec. 163.007. FACTORS TO DETERMINE RISK OF ABDUCTION. (a) |
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In determining whether there is a credible risk of abduction of a |
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child, the court shall consider evidence that the respondent or the |
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petitioner: |
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(1) has previously abducted or attempted to abduct the |
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child; |
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(2) has threatened to abduct the child; |
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(3) has recently engaged in activities, other than |
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planning activities related to carrying out a safety plan to flee |
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from family violence, that may indicate a planned abduction, |
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including: |
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(A) abandoning employment; |
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(B) selling a primary residence or terminating a |
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lease; |
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(C) closing bank or other financial management |
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accounts, liquidating assets, hiding or destroying financial |
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documents, or conducting any other unusual financial activities; |
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(D) applying for a passport or visa, obtaining |
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travel documents, or purchasing travel tickets for the respondent, |
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another family member, or the child; or |
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(E) seeking to obtain the child's birth |
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certificate or school or medical records; |
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(4) has engaged in family violence, stalking, or child |
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abuse or neglect; |
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(5) has failed or refused to follow a child custody |
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determination; |
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(6) lacks strong familial, financial, emotional, or |
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cultural ties to the state or the United States, regardless of |
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whether the other parent is a citizen or permanent resident of the |
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United States; |
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(7) has strong familial, financial, emotional, or |
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cultural ties to another state or country and is likely to take the |
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child to that country, particularly a country that: |
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(A) is not a party to the Hague Convention on the |
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Civil Aspects of International Child Abduction and does not provide |
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for the extradition of an abducting parent or for the return of an |
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abducted child; |
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(B) is a party to the Hague Convention on the |
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Civil Aspects of International Child Abduction but: |
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(i) the Hague Convention on the Civil |
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Aspects of International Child Abduction is not in force between |
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the United States and that country; |
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(ii) is noncompliant according to the most |
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recent compliance report issued by the United States Department of |
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State; or |
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(iii) lacks legal mechanisms for |
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immediately and effectively enforcing a return order under the |
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Hague Convention on the Civil Aspects of International Child |
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Abduction; |
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(C) poses a risk that the child's physical or |
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emotional health or safety would be endangered in the country |
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because of specific circumstances relating to the child or because |
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of human rights violations committed against children; |
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(D) has laws or practices that would: |
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(i) enable the respondent, without due |
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cause, to prevent the petitioner from contacting the child; |
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(ii) restrict the petitioner from freely |
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traveling to or exiting from the country because of the |
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petitioner's gender, nationality, marital status, or religion; or |
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(iii) restrict the child's ability legally |
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to leave the country after the child reaches the age of majority |
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because of a child's gender, nationality, or religion; |
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(E) is included by the United States Department |
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of State on a current list of state sponsors of terrorism; |
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(F) does not have an official United States |
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diplomatic presence in the country; or |
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(G) is engaged in active military action or war, |
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including a civil war, to which the child may be exposed; |
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(8) is undergoing a change in immigration or |
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citizenship status that would adversely affect the respondent's |
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ability to remain in the United States legally; |
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(9) has had an application for United States |
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citizenship denied; |
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(10) has forged or presented misleading or false |
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evidence on government forms or supporting documents to obtain or |
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attempt to obtain a passport, a visa, travel documents, a social |
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security card, a driver's license, or another government-issued |
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identification card or has made a misrepresentation to the United |
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States government; |
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(11) has used multiple names to attempt to mislead or |
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defraud; or |
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(12) has engaged in any other conduct the court |
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considers relevant to the risk of abduction. |
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(b) In the hearing on a petition for abduction prevention |
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measures, the court shall consider: |
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(1) evidence that the respondent believed in good |
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faith that the respondent's conduct was necessary to avoid imminent |
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harm to the child or respondent; and |
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(2) any other evidence that may be relevant to whether |
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the respondent may be permitted to remove or retain the child. |
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Sec. 163.008. PROVISIONS AND MEASURES TO PREVENT ABDUCTION. |
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(a) If a petition has been filed under this chapter, the court may |
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enter an order that includes: |
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(1) the basis for the court's exercise of |
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jurisdiction; |
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(2) the manner in which notice and opportunity to be |
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heard were given to the persons entitled to notice of the proceeding |
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under the Texas Rules of Civil Procedure; |
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(3) a detailed description of each parent's custody |
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and visitation rights and residential arrangements for the child; |
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(4) a provision stating that a violation of the order |
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may subject the party in violation to civil and criminal penalties; |
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and |
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(5) identification of the child's country of habitual |
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residence at the time of the issuance of the order. |
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(b) If after reviewing the evidence, at a hearing on a |
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petition under this chapter or on the court's own motion, the court |
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finds a credible risk of abduction of the child, the court shall |
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enter an abduction prevention order. The order must include the |
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provisions described in Subsection (a) and the measures and |
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conditions, including those described in Subsections (c), (d), and |
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(e), that are reasonably calculated to prevent abduction of the |
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child, giving due consideration to the custody and visitation |
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rights of both parents. In determining the measures to be ordered, |
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the court shall consider: |
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(1) the age of the child; |
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(2) the potential harm to the child from an abduction; |
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(3) the legal and practical difficulties of returning |
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the child to the jurisdiction if abducted; and |
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(4) the reasons for the potential abduction, including |
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evidence of domestic violence or child abuse. |
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(c) An abduction prevention order may include one or more of |
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the following: |
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(1) the imposition of travel restrictions that require |
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that a party traveling with the child outside a designated |
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geographical area provide the other party with the following: |
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(A) the travel itinerary of the child; |
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(B) a list of physical addresses and telephone |
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numbers at which the child can be reached at specified times; and |
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(C) copies of all travel documents; |
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(2) a prohibition against the respondent directly or |
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indirectly: |
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(A) removing the child from this state, the |
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United States, or another geographic area without permission of the |
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court or the petitioner's written consent; |
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(B) removing or retaining the child in violation |
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of the child custody determination; |
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(C) removing the child from school or a |
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child-care or similar facility; or |
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(D) approaching the child at any location other |
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than a site designated for supervised visitation; |
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(3) requiring a party to register the order in another |
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state as a prerequisite to allowing the child to travel to that |
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state; |
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(4) with regard to the child's passport: |
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(A) directing the petitioner to place the child's |
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name in the United States Department of State's Children's Passport |
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Issuance Alert Program (CPIAP); |
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(B) requiring the respondent to surrender to the |
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court or the petitioner's attorney any United States or foreign |
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passport issued in the child's name, including a passport issued in |
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the name of both the respondent and the child; and |
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(C) prohibiting the respondent from applying on |
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behalf of the child for a new or replacement passport or visa; |
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(5) as a prerequisite to exercising custody or |
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visitation, requiring the respondent to provide: |
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(A) to the United States Department of State |
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Office of Children's Issues and the relevant foreign consulate or |
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embassy an authenticated copy of a court order detailing passport |
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and travel restrictions for the child; |
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(B) to the court: |
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(i) proof that the respondent has provided |
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the information in Paragraph (A); and |
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(ii) an acknowledgment in a record from the |
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relevant foreign consulate or embassy that no passport application |
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has been made, or passport issued, on behalf of the child; |
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(C) to the petitioner, proof of registration with |
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the United States embassy or other United States diplomatic |
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presence in the destination country, and with the Central Authority |
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for the Hague Convention on the Civil Aspects of International |
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Child Abduction, if that convention is in effect between the United |
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States and the destination country, unless one of the parents |
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objects; and |
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(D) a written waiver under the federal Privacy |
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Act of 1974 (5 U.S.C. Section 552a), with respect to any document, |
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application, or other information pertaining to the child |
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authorizing disclosure of them to the court and the petitioner; and |
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(6) on the petitioner's request, a requirement that |
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the respondent obtain an order from the relevant foreign country |
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containing terms identical to the child custody determination |
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issued in the United States. |
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(d) In an abduction prevention order, the court may impose |
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conditions on the exercise of custody or visitation that: |
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(1) limit visitation or require that visitation with |
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the child by the respondent be supervised until the court finds that |
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supervision is no longer necessary and order the respondent to pay |
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for the supervision; |
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(2) require the respondent to post a bond or provide |
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other security in an amount sufficient to serve as a financial |
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deterrent to abduction, the proceeds of which may be used to pay for |
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the expenses of recovery of the child, including attorney's fees |
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and actual costs if there is an abduction; and |
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(3) require the respondent to obtain education on the |
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potentially harmful effects to the child from abduction. |
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(e) To prevent imminent abduction of a child, a court may: |
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(1) issue a warrant to take physical custody of the |
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child under Section 163.009 or other law of this state; |
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(2) direct the use of law enforcement to take any |
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action reasonably necessary to locate the child, obtain return of |
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the child, or enforce a custody determination under this chapter or |
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other law of this state; and |
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(3) grant any other relief allowed under other law of |
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this state. |
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(f) The remedies provided in this chapter are cumulative and |
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do not affect the availability of other state remedies to prevent |
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child abduction. |
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Sec. 163.009. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD. |
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(a) If a petition under this chapter contains allegations, and the |
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court finds that there is a credible risk that the child is |
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imminently likely to be wrongfully removed, the court may issue an |
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ex parte warrant to take physical custody of the child. |
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(b) The respondent on a petition under Subsection (a) must |
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be afforded an opportunity to be heard at the earliest possible time |
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after the ex parte warrant is executed, but not later than the next |
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judicial day unless that date is impossible. In that event, the |
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court shall hold the hearing on the first judicial day possible. |
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(c) An ex parte warrant to take physical custody of a child |
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must: |
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(1) recite the facts on which a determination of a |
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credible risk of imminent wrongful removal of the child is based; |
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(2) direct law enforcement officers to take physical |
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custody of the child immediately; |
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(3) state the date for the hearing on the petition; and |
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(4) provide for the safe interim placement of the |
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child pending further order of the court. |
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(d) If feasible, before issuing a warrant and determining |
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the placement of the child after the warrant is executed, the court |
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may order a search of the relevant databases of the National Crime |
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Information Center system, including those pertaining to |
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protection orders, historical protection orders, warrants, sex |
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offender registries, and persons on supervised release, and similar |
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state databases to determine if either the petitioner or the |
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respondent has a history of family violence or child abuse. |
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(e) The respondent must be served with the petition and |
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warrant when, or immediately after, the child is taken into |
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physical custody. |
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(f) A warrant to take physical custody of a child, issued by |
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this state or another state, is enforceable throughout this state. |
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If the court finds that a less intrusive remedy will not be |
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effective, it may authorize law enforcement officers to enter |
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private property to take physical custody of the child. If required |
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by exigent circumstances, the court may authorize law enforcement |
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officers to make a forcible entry at any hour. |
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(g) If the court finds, after hearing, that a petitioner |
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sought an ex parte warrant under Subsection (a) for the purpose of |
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harassment or in bad faith, the court may award the respondent |
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reasonable attorney's fees, expenses, and costs. |
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(h) This chapter does not affect the availability of relief |
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allowed under other law of this state. |
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Sec. 163.010. DURATION OF ABDUCTION PREVENTION ORDER. An |
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abduction prevention order remains in effect until the earliest of: |
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(1) a time stated in the order; |
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(2) the date the child is emancipated; |
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(3) the date of the child's 18th birthday; or |
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(4) the date the order is modified, revoked, vacated, |
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or superseded by a court with jurisdiction under Sections 152.201 |
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through 152.203. |
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Sec. 163.011. UNIFORMITY OF APPLICATION AND CONSTRUCTION. |
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In applying and construing this chapter, consideration must be |
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given to the need to promote uniformity of the law with respect to |
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its subject matter among states that enact it. |
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Sec. 163.012. RELATION TO FEDERAL ELECTRONIC SIGNATURES IN |
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GLOBAL AND NATIONAL COMMERCE ACT. This chapter modifies, limits, |
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and supersedes the federal Electronic Signatures in Global and |
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National Commerce Act (15 U.S.C. Section 7001 et seq.) but does not |
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modify, limit, or supersede Section 101(c) of that Act or authorize |
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electronic delivery of any of the notices described in Section |
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103(b) of that Act. |
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SECTION 2. Subchapter I, Chapter 153, Family Code, is |
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repealed. |
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SECTION 3. The changes in law made by this Act apply to a |
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suit affecting the parent-child relationship pending in a trial |
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court on the effective date of this Act or filed on or after that |
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date. |
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SECTION 4. This Act takes effect September 1, 2011. |