85R13668 JSC-F
 
  By: White H.B. No. 3883
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to interference with possession of or access to a child;
  providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 157.001, Family Code, is amended by
  amending Subsections (a) and (b) and adding Subsections (f) and (g)
  to read as follows:
         (a)  A motion for enforcement as provided in this chapter may
  be filed to enforce any provision of a temporary or final order
  rendered in a suit or an agreement under Rule 11, Texas Rules of
  Civil Procedure.
         (b)  The court may enforce by contempt any provision of a
  temporary or final order or an agreement under Rule 11, Texas Rules
  of Civil Procedure.
         (f)  The court may render a temporary order for possession of
  or access to a child for the purpose of enforcing an order
  previously rendered by the court without a party initiating a
  modification proceeding.
         (g)  A parent or conservator who interferes with or denies a
  parent or conservator possession of or access to a child to which
  the parent or conservator is entitled under a court order is subject
  to:
               (1)  prosecution under Section 25.03, Penal Code, if
  the conduct of the parent or conservator violates that section; and
               (2)  liability to the party who was deprived of
  possession of or access to the child.
         SECTION 2.  Subchapter A, Chapter 157, Family Code, is
  amended by adding Section 157.0021 to read as follows:
         Sec. 157.0021.  MOTION TO EXPEDITE ENFORCEMENT OF POSSESSION
  ORDER. (a)  If a party alleges that the other party has engaged in
  conduct that violates Section 25.03, Penal Code, such that the
  petitioner was deprived of possession of or access to the child, the
  party may file a motion to expedite enforcement under this section.
         (b)  A motion under this section must be in substantially the
  following form:
  IN THE DISTRICT COURT OF ____________________ COUNTY
  STATE OF TEXAS
  _____________________, Petitioner/Plaintiff,
  v.
  _____________________, Respondent, Defendant.
  Case No.______________________
  Assigned Judge_________________________
  MOTION FOR EXPEDITED ENFORCEMENT OF POSSESSION ORDER
         The undersigned conservator in the above case moves the
  court, pursuant to the provisions of Chapter 157, Family Code, to
  enforce possession or access time and rights, to which the
  petitioner is entitled under a court order, that have been denied or
  otherwise interfered with by the respondent. The name(s) and age(s)
  of the child(ren) to which my possession or access time and rights
  have been denied or interfered with are:
  Name of Child:_________________________
  Date of Birth:_________________________
  Name of Child:_________________________
  Date of Birth:_________________________
  (Attach additional pages as necessary).
         The first date of denial or interference with my
  possession  or access time with the child(ren) was:
  ____________________________________________________________.
         I attempted to take possession of or have access to the
  child(ren) by:___________________________________ according to my
  order as stated as follows:___________________________________.
         The next date of denial or interference with my
  possession  or access time with the child(ren) was:
  _____________________________________________________________.
         I attempted to take possession of or have access to the
  child(ren) by:___________________________________ according to my
  order as stated as follows:___________________________________.
  (Attach additional pages as necessary).
         The total number of times that my possession or access time
  was denied or interfered with was:_______________________.
         I am moving the court to enforce my order dated ____________
  and signed by ______________________ and filed on
  _________________.
         I am asking the court for the following remedies, (select the
  remedies the petitioner is seeking):
               (1)  A specific enforceable time schedule compensating
  possession or access time for the time denied or otherwise
  interfered with, which time shall be of the same type (e.g.,
  holiday, weekday, weekend, summer) or as otherwise agreed on by the
  deprived conservator, and shall be at the convenience of the
  deprived conservator.
               (2)  Awarding of reasonable enforcement costs to the
  deprived conservator, including attorney's fees, costs of court,
  and costs for bringing this action.
               (3)  A specific possession or access time schedule,
  enforceable by contempt of court.
               (4)  A fine not to exceed $500 per incident.
         And further the petitioner requests the court to order one or
  more of the following (select requested actions by court):
               (1)  Posting of a bond of cash or with sufficient
  sureties, conditioned on compliance with the order specifying
  possession or access.
               (2)  Attendance of counseling or educational sessions
  that focus on the impact of possession or access disputes on
  children and costs charged to the violating conservator.
               (3)  Supervised visitation.
               (4)  Any other remedy the court considers appropriate
  (specify) __________________.
         Final disposition of a motion filed pursuant to this section
  shall take place no later than 45 days after filing of the motion.
         I have attached an affidavit stating the specific details as
  to how and when my possession or access time and rights with the
  child(ren) was denied.
         Signed under penalties of perjury this _________________ day
  of __________________, 20_______.
  My Signature:____________________________
  My Full Name:_____________________________________________
  My Mailing Address:_______________________________________
  My Telephone Numbers:_____________________________________
  The last four digits of my social security
  number:___________________
  The last four digits of my driver's license:____________________
  The last four digits of the social security number of the
  respondent, if known:___________________
  The last known address of the
  respondent:______________________________________
         Subscribed and sworn to before me this __________ day of
  ______________, 20_______________.
  Notary Public (or Clerk or Judge) Name and Signature
  _______________________________________________________________.
  My Commission Expires:_______________________________.
         (c)  A respondent's order to appear following a motion under
  this section must be in substantially the following form:
  ORDER TO APPEAR
         The State of Texas, to the within-named respondent: You are
  hereby directed to appear and answer the foregoing claim and to have
  with you all books, papers, and witnesses needed by you to establish
  your defense to the claim.
         This matter shall be heard at ____________________ (name or
  address of building), in _______________, County of ____________,
  State of Texas, at _____ (time) of the _______________ day of
  ______________, 20_________.
         And you are further notified that in case you do not so appear
  judgment may be entered against you as follows:
         For the enforcement or modification of possession of or
  access to a child as requested by the petitioner.
         And, in addition, for costs of the action (including
  attorney's fees where provided by law), including costs of service
  of the order.
         A fine of up to $500 for each incident of violation.
  Dated this _______ day of ___________, 20___________.
  Clerk of the Court (or Judge) ___________________________________.
         A copy of this order must be mailed by certified mail, return
  receipt requested, to the respondent and return of service brought
  to the hearing.
         A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL
  FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A
  MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
         SECTION 3.  Section 157.061(b), Family Code, is amended to
  read as follows:
         (b)  If the motion for enforcement does not request contempt,
  the court shall set the motion for hearing on the request of a party
  not later than the 14th day after the date the party makes the
  request.
         SECTION 4.  Section 157.062(c), Family Code, is amended to
  read as follows:
         (c)  Notice of hearing on a motion for enforcement of a final
  order, temporary order, or agreement under Rule 11, Texas Rules of
  Civil Procedure, providing for child support or possession of or
  access to a child, any provision of a final order rendered against a
  party who has already appeared in a suit under this title, or any
  provision of a temporary order shall be given to the respondent not
  later than the 10th day before the date of the hearing by personal
  service of a copy of the motion and notice or through certified mail
  to the last known address of the respondent as recorded by the court
  [not later than the 10th day before the date of the hearing].  For
  purposes of this subsection, "temporary order" includes a temporary
  restraining order, standing order, injunction, and any other
  temporary order rendered by a court.
         SECTION 5.  Section 157.166, Family Code, is amended by
  adding Subsection (d) to read as follows:
         (d)  An order granted under this section must contain the
  following statement:
         WARNING TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR
  POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION
  TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF ANY
  VIOLATION OF THIS ORDER SHALL BE PUNISHED.
         SECTION 6.  Subchapter D, Chapter 157, Family Code, is
  amended by adding Section 157.169 to read as follows:
         Sec. 157.169.  ADDITIONAL REMEDIES. If the court finds that
  a party has engaged in conduct described by Section 25.03, Penal
  Code, a court may order one or more of the following remedies:
               (1)  a fine not to exceed $500 for each incident of
  interference or denial of possession or access time;
               (2)  a specific possession or access schedule,
  enforceable by contempt;
               (3)  posting of a bond by cash or with sufficient
  sureties, conditioned on compliance with the order specifying
  possession or access;
               (4)  attendance of counseling or educational sessions
  that focus on the impact of possession and access disputes on
  children;
               (5)  supervised visitation; or
               (6)  any other remedy the court considers appropriate,
  which may include an order which modifies a prior order specifying
  possession of or access to the child.
         SECTION 7.  Section 25.03, Penal Code, is amended by
  amending Subsections (a), (b), (c), (c-1), and (c-2) and adding
  Subsections (b-1) and (b-2) to read as follows:
         (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:
                     (A)  [,] without the permission of the court and
  with the intent to deprive the court of authority over the child; or
                     (B)  without the permission of each parent,
  managing conservator, or guardian of the child;
               (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; or
               (4)  during a period of possession or access granted by
  the court under a judgment or order to a parent, conservator, or
  guardian of the child with the intent to:
                     (A)  violate a court judgment or order; and
                     (B)  prevent the parent, conservator, or guardian
  of the child from having custody of the child during the period of
  possession of or access to the child granted by the court.
         (b)  A person [noncustodial parent] commits an offense if,
  with the intent to interfere with the lawful custody of a child
  younger than 18 years, the person [noncustodial parent] knowingly
  entices or persuades the child to leave the custody of the person
  who is entitled to custody of the child at the time of the offense,
  including the [custodial] parent, guardian, or person standing in
  the stead of the [custodial] parent or guardian of the child.
         (b-1)  It is not a defense to prosecution under Subsection
  (a)(4) that at the time of the offense the child refused to go with
  the person who is entitled to custody of the child at that time.
         (b-2)  It is not a defense to prosecution under Subsection
  (b) that the person entitled to custody of the child is the
  noncustodial parent 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
  24 hours [three days] after the time [date] of the commission of the
  offense.
         (c-1)  It is an affirmative defense to prosecution under
  Subsection (a)(3) or (a)(4) 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:
                     (A)  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 and to
  local law enforcement in the municipality or county in which the
  other person resides; and
                     (B)  not later than 24 hours after the time the
  violation of Subsection (a)(3) or (a)(4) occurred:
                           (i)  the actor delivers the child to the
  person entitled to custody or to local law enforcement; or
                           (ii)  a court has issued an emergency order
  authorizing the actor to retain possession of the child.
         (c-2)  Subsection (a)(3) or (a)(4) does not apply if, at the
  time of the offense, the actor [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, as defined by Section 71.004, Family Code,
  against the child or the actor, provided that:
                     (A)  a protective order under Title 4, Family
  Code, or a magistrate's order for emergency protection under
  Article 17.292, Code of Criminal Procedure, is in effect;
                     (B)  an application for a protective order has
  been filed under Title 4, Family Code; or
                     (C)  not later than the 14th day after the date the
  actor took or retained the child in violation of this section, the
  actor filed an application for a protective order under Title 4,
  Family Code [person].
         SECTION 8.  Chapter 157, Family Code, as amended by this Act,
  applies only to an enforcement action commenced on or after the
  effective date of this Act.
         SECTION 9.  Section 25.03, Penal Code, as amended by this
  Act, applies only to an offense committed on or after the effective
  date of this Act. An offense committed before the effective date of
  this Act is governed by the law in effect on the date the offense was
  committed, and the former law is continued in effect for that
  purpose. For purposes of this section, an offense was committed
  before the effective date of this Act if any element of the offense
  occurred before that date.
         SECTION 10.  This Act takes effect September 1, 2017.