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Interference with Custody (Monday, November 4, 2013)

 

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You’re Not Taking the Kids

It is the 1st Friday of the month, and according to the custody order, you get visitation this weekend.  However, your spiteful Ex says that you don’t get them this weekend.

 

Isn’t this illegal?  Are you supposed to call the police?  You know this isn’t right, but what can you do?

 

Call the Police, But First...

The first thing you need to do is create a record.  Document, Document, Document!

 

If your Ex refuses to let you have your children, you should get it in writing.  If the initial refusal happens over the phone, follow

it up with a text message asking your Ex why you can’t have visitation this weekend.

 

Next, you should call the police and file a police report.  However, you should be prepared for the police to go out of their way to not help you.  One of the most common responses the police give parents in your situation is, “It’s a civil matter and we don’t want to get involved.”

 

Not Just a Civil Matter

Did you know that refusal to allow visitation is a crime?  Oh, I bet that has your attention.

 

“A person commits an offense if the person takes or retains a child younger than 18 years of age...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.”

—See Tex. Pen. Code § 25.03(a)(1)

 

Therefore, if your Court Order says that you are entitled to visitation on a certain weekend (1st, 3rd, 5th for example), and your Ex knows that refusing visitation violates the terms of the Order, then your Ex has committed an offense.  This offense is called “Interference with Child Custody.”

 

Wow, That’s Really Serious

Any time you talk about a criminal offense, you always have to consider how serious the punishment is.  I mean, if bank robbery was punishable with a $500 fine, then there wouldn’t be much of a deterrent.

 

Interference with Child Custody is punishable as a State Jail Felony.  OUCH! 

—See Tex. Pen. Code § 25.03(d)

 

An offense punished as a State Jail Felony is punished with confinement in a state jail facility for no less than 180 days, and no more than 2 years.  In addition to confinement, the person may be fined up to $10,000.00.

—See Tex. Pen. Code § 12.35

 

Therefore, when the police tell you that it is a civil matter and that they do not want to get involved, then make sure you inform them that a crime has been committed and demand that they make a report.  If the first officer refuses, then ask to speak to a supervisor (sergeant or lieutenant).

 

Exceptions to the Rule

Even though the above looks fairly scary, there are a couple of exceptions that allow you to interfere with child custody.  Specifically, the law allows for affirmative defenses.

 

For example, if the Order says you have to return the children by 6pm, and you encounter circumstances that are beyond your control which prevent you from getting the children back in time, and you immediately gave, or attempted to give, notice to your Ex that you were going to be late, then you shouldn’t have to worry about being prosecuted.

—See Tex. Pen. Code § 25.03(c-1)(2)

 

If there is some reason that you do not believe it is in the child’s best interest to return to your Ex, then you should pursue that in Court instead of taking it into your own hands.  If your child is being abused by your Ex, either physically or sexually, then you should contact the police and CPS. 

 

Alternative to Criminal Complaint

You may not want to file a criminal complaint against your Ex; they are the parent to your children for whatever that is worth.  In that case, there is an alternative.

 

In Texas, you can bring a civil suit called a Motion to Enforce.  However that is a conversation for another day.  We’ll make sure that we update this blog with a link as soon as we publish an article about it.

 

--Authored by Matthew L. Harris, Esq.,

 

Matthew Harris Law, PLLC  - Family Law Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

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