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A BILL TO BE ENTITLED
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AN ACT
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relating to interference with possession of or access to a child; |
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providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 157.001, Family Code, is amended by |
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amending Subsections (a) and (b) and adding Subsections (f) and (g) |
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to read as follows: |
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(a) A motion for enforcement as provided in this chapter may |
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be filed to enforce any provision of a temporary or final order |
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rendered in a suit or an agreement under Rule 11, Texas Rules of |
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Civil Procedure. |
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(b) The court may enforce by contempt any provision of a |
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temporary or final order or an agreement under Rule 11, Texas Rules |
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of Civil Procedure. |
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(f) The court may render a temporary order for possession of |
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or access to a child for the purpose of enforcing an order |
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previously rendered by the court without a party initiating a |
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modification proceeding. |
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(g) A parent or conservator who interferes with or denies a |
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parent or conservator possession of or access to a child to which |
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the parent or conservator is entitled under a court order is subject |
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to: |
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(1) prosecution under Section 25.03, Penal Code, if |
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the conduct of the parent or conservator violates that section; and |
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(2) liability to the party who was deprived of |
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possession of or access to the child. |
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SECTION 2. Subchapter A, Chapter 157, Family Code, is |
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amended by adding Section 157.0021 to read as follows: |
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Sec. 157.0021. MOTION TO EXPEDITE ENFORCEMENT OF POSSESSION |
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ORDER. (a) If a party alleges that the other party has engaged in |
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conduct that violates Section 25.03, Penal Code, such that the |
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petitioner was deprived of possession of or access to the child, the |
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party may file a motion to expedite enforcement under this section. |
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(b) A motion under this section must be in substantially the |
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following form: |
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IN THE DISTRICT COURT OF ____________________ COUNTY |
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STATE OF TEXAS |
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_____________________, Petitioner/Plaintiff, |
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v. |
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_____________________, Respondent, Defendant. |
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Case No.______________________ |
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Assigned Judge_________________________ |
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MOTION FOR EXPEDITED ENFORCEMENT OF POSSESSION ORDER |
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The undersigned conservator in the above case moves the |
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court, pursuant to the provisions of Chapter 157, Family Code, to |
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enforce possession or access time and rights, to which the |
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petitioner is entitled under a court order, that have been denied or |
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otherwise interfered with by the respondent. The name(s) and age(s) |
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of the child(ren) to which my possession or access time and rights |
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have been denied or interfered with are: |
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Name of Child:_________________________ |
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Date of Birth:_________________________ |
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Name of Child:_________________________ |
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Date of Birth:_________________________ |
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(Attach additional pages as necessary). |
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The first date of denial or interference with my |
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possession or access time with the child(ren) was: |
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____________________________________________________________. |
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I attempted to take possession of or have access to the |
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child(ren) by:___________________________________ according to my |
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order as stated as follows:___________________________________. |
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The next date of denial or interference with my |
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possession or access time with the child(ren) was: |
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_____________________________________________________________. |
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I attempted to take possession of or have access to the |
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child(ren) by:___________________________________ according to my |
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order as stated as follows:___________________________________. |
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(Attach additional pages as necessary). |
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The total number of times that my possession or access time |
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was denied or interfered with was:_______________________. |
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I am moving the court to enforce my order dated ____________ |
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and signed by ______________________ and filed on |
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_________________. |
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I am asking the court for the following remedies, (select the |
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remedies the petitioner is seeking): |
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(1) A specific enforceable time schedule compensating |
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possession or access time for the time denied or otherwise |
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interfered with, which time shall be of the same type (e.g., |
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holiday, weekday, weekend, summer) or as otherwise agreed on by the |
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deprived conservator, and shall be at the convenience of the |
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deprived conservator. |
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(2) Awarding of reasonable enforcement costs to the |
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deprived conservator, including attorney's fees, costs of court, |
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and costs for bringing this action. |
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(3) A specific possession or access time schedule, |
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enforceable by contempt of court. |
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(4) A fine not to exceed $500 per incident. |
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And further the petitioner requests the court to order one or |
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more of the following (select requested actions by court): |
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(1) Posting of a bond of cash or with sufficient |
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sureties, conditioned on compliance with the order specifying |
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possession or access. |
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(2) Attendance of counseling or educational sessions |
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that focus on the impact of possession or access disputes on |
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children and costs charged to the violating conservator. |
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(3) Supervised visitation. |
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(4) Any other remedy the court considers appropriate |
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(specify) __________________. |
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Final disposition of a motion filed pursuant to this section |
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shall take place no later than 45 days after filing of the motion. |
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I have attached an affidavit stating the specific details as |
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to how and when my possession or access time and rights with the |
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child(ren) was denied. |
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Signed under penalties of perjury this _________________ day |
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of __________________, 20_______. |
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My Signature:____________________________ |
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My Full Name:_____________________________________________ |
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My Mailing Address:_______________________________________ |
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My Telephone Numbers:_____________________________________ |
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The last four digits of my social security |
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number:___________________ |
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The last four digits of my driver's license:____________________ |
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The last four digits of the social security number of the |
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respondent, if known:___________________ |
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The last known address of the |
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respondent:______________________________________ |
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Subscribed and sworn to before me this __________ day of |
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______________, 20_______________. |
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Notary Public (or Clerk or Judge) Name and Signature |
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_______________________________________________________________. |
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My Commission Expires:_______________________________. |
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(c) A respondent's order to appear following a motion under |
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this section must be in substantially the following form: |
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ORDER TO APPEAR |
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The State of Texas, to the within-named respondent: You are |
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hereby directed to appear and answer the foregoing claim and to have |
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with you all books, papers, and witnesses needed by you to establish |
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your defense to the claim. |
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This matter shall be heard at ____________________ (name or |
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address of building), in _______________, County of ____________, |
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State of Texas, at _____ (time) of the _______________ day of |
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______________, 20_________. |
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And you are further notified that in case you do not so appear |
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judgment may be entered against you as follows: |
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For the enforcement or modification of possession of or |
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access to a child as requested by the petitioner. |
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And, in addition, for costs of the action (including |
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attorney's fees where provided by law), including costs of service |
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of the order. |
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A fine of up to $500 for each incident of violation. |
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Dated this _______ day of ___________, 20___________. |
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Clerk of the Court (or Judge) ___________________________________. |
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A copy of this order must be mailed by certified mail, return |
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receipt requested, to the respondent and return of service brought |
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to the hearing. |
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A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL |
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FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A |
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MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS. |
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SECTION 3. Section 157.061(b), Family Code, is amended to |
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read as follows: |
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(b) If the motion for enforcement does not request contempt, |
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the court shall set the motion for hearing on the request of a party |
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not later than the 14th day after the date the party makes the |
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request. |
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SECTION 4. Section 157.062(c), Family Code, is amended to |
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read as follows: |
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(c) Notice of hearing on a motion for enforcement of a final |
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order, temporary order, or agreement under Rule 11, Texas Rules of |
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Civil Procedure, providing for child support or possession of or |
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access to a child, any provision of a final order rendered against a |
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party who has already appeared in a suit under this title, or any |
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provision of a temporary order shall be given to the respondent not |
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later than the 10th day before the date of the hearing by personal |
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service of a copy of the motion and notice or through certified mail |
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to the last known address of the respondent as recorded by the court |
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[not later than the 10th day before the date of the hearing]. For |
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purposes of this subsection, "temporary order" includes a temporary |
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restraining order, standing order, injunction, and any other |
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temporary order rendered by a court. |
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SECTION 5. Section 157.166, Family Code, is amended by |
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adding Subsection (d) to read as follows: |
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(d) An order granted under this section must contain the |
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following statement: |
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WARNING TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR |
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POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION |
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TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF ANY |
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VIOLATION OF THIS ORDER SHALL BE PUNISHED. |
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SECTION 6. Subchapter D, Chapter 157, Family Code, is |
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amended by adding Section 157.169 to read as follows: |
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Sec. 157.169. ADDITIONAL REMEDIES. If the court finds that |
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a party has engaged in conduct described by Section 25.03, Penal |
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Code, a court may order one or more of the following remedies: |
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(1) a fine not to exceed $500 for each incident of |
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interference or denial of possession or access time; |
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(2) a specific possession or access schedule, |
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enforceable by contempt; |
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(3) posting of a bond by cash or with sufficient |
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sureties, conditioned on compliance with the order specifying |
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possession or access; |
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(4) attendance of counseling or educational sessions |
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that focus on the impact of possession and access disputes on |
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children; |
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(5) supervised visitation; or |
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(6) any other remedy the court considers appropriate, |
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which may include an order which modifies a prior order specifying |
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possession of or access to the child. |
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SECTION 7. Section 25.03, Penal Code, is amended by |
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amending Subsections (a), (b), (c), (c-1), and (c-2) and adding |
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Subsections (b-1) and (b-2) to read as follows: |
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(a) A person commits an offense if the person takes or |
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retains a child younger than 18 years of age: |
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(1) when the person knows that the person's taking or |
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retention violates the express terms of a judgment or order, |
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including a temporary order, of a court disposing of the child's |
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custody; |
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(2) when the person has not been awarded custody of the |
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child by a court of competent jurisdiction, knows that a suit for |
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divorce or a civil suit or application for habeas corpus to dispose |
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of the child's custody has been filed, and takes the child out of |
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the geographic area of the counties composing the judicial district |
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if the court is a district court or the county if the court is a |
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statutory county court: |
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(A) [,] without the permission of the court and |
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with the intent to deprive the court of authority over the child; or |
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(B) without the permission of each parent, |
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managing conservator, or guardian of the child; |
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(3) outside of the United States with the intent to |
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deprive a person entitled to possession of or access to the child of |
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that possession or access and without the permission of that |
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person; or |
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(4) during a period of possession or access granted by |
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the court under a judgment or order to a parent, conservator, or |
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guardian of the child with the intent to: |
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(A) violate a court judgment or order; and |
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(B) prevent the parent, conservator, or guardian |
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of the child from having custody of the child during the period of |
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possession of or access to the child granted by the court. |
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(b) A person [noncustodial parent] commits an offense if, |
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with the intent to interfere with the lawful custody of a child |
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younger than 18 years, the person [noncustodial parent] knowingly |
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entices or persuades the child to leave the custody of the person |
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who is entitled to custody of the child at the time of the offense, |
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including the [custodial] parent, guardian, or person standing in |
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the stead of the [custodial] parent or guardian of the child. |
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(b-1) It is not a defense to prosecution under Subsection |
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(a)(4) that at the time of the offense the child refused to go with |
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the person who is entitled to custody of the child at that time. |
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(b-2) It is not a defense to prosecution under Subsection |
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(b) that the person entitled to custody of the child is the |
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noncustodial parent of the child. |
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(c) It is a defense to prosecution under Subsection (a)(2) |
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that the actor returned the child to the geographic area of the |
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counties composing the judicial district if the court is a district |
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court or the county if the court is a statutory county court, within |
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24 hours [three days] after the time [date] of the commission of the |
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offense. |
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(c-1) It is an affirmative defense to prosecution under |
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Subsection (a)(3) or (a)(4) that: |
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(1) the taking or retention of the child was pursuant |
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to a valid order providing for possession of or access to the child; |
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or |
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(2) notwithstanding any violation of a valid order |
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providing for possession of or access to the child, the actor's |
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retention of the child was due only to circumstances beyond the |
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actor's control and: |
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(A) the actor promptly provided notice or made |
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reasonable attempts to provide notice of those circumstances to the |
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other person entitled to possession of or access to the child and to |
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local law enforcement in the municipality or county in which the |
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other person resides; and |
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(B) not later than 24 hours after the time the |
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violation of Subsection (a)(3) or (a)(4) occurred: |
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(i) the actor delivers the child to the |
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person entitled to custody or to local law enforcement; or |
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(ii) a court has issued an emergency order |
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authorizing the actor to retain possession of the child. |
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(c-2) Subsection (a)(3) or (a)(4) does not apply if, at the |
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time of the offense, the actor [person taking or retaining the
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child]: |
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(1) was entitled to possession of or access to the |
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child; and |
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(2) was fleeing the commission or attempted commission |
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of family violence, as defined by Section 71.004, Family Code, |
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against the child or the actor, provided that: |
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(A) a protective order under Title 4, Family |
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Code, or a magistrate's order for emergency protection under |
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Article 17.292, Code of Criminal Procedure, is in effect; |
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(B) an application for a protective order has |
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been filed under Title 4, Family Code; or |
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(C) not later than the 14th day after the date the |
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actor took or retained the child in violation of this section, the |
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actor filed an application for a protective order under Title 4, |
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Family Code [person]. |
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SECTION 8. Chapter 157, Family Code, as amended by this Act, |
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applies only to an enforcement action commenced on or after the |
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effective date of this Act. |
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SECTION 9. Section 25.03, Penal Code, as amended by this |
|
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Act, applies only to an offense committed on or after the effective |
|
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date of this Act. An offense committed before the effective date of |
|
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this Act is governed by the law in effect on the date the offense was |
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committed, and the former law is continued in effect for that |
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purpose. For purposes of this section, an offense was committed |
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before the effective date of this Act if any element of the offense |
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occurred before that date. |
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SECTION 10. This Act takes effect September 1, 2017. |