Bill Text: TX HB3883 | 2017-2018 | 85th Legislature | Introduced

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Bill Title: Relating to interference with possession of or access to a child; providing penalties.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2017-03-31 - Referred to Juvenile Justice & Family Issues [HB3883 Detail]

Download: Texas-2017-HB3883-Introduced.html

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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.