When parents don’t get along, disagreements about child custody and visitation can get heated. In extreme situations, one parent may even flee to another city, state or country to prevent the other parent from having access to their child. The question is: When is it kidnapping to take your child away and out of the other parent’s reach?
In this article, we will answer some common questions about parental kidnapping in Texas, such as:
- What is parental kidnapping in Texas? And what is parental abduction? Short Answer: When a parent takes a child under the age of 18 away from another parent in violation of a judge’s orders forbidding them to do so, that is considered parental kidnapping, which is also known as parental abduction in Texas.
- Is it considered kidnapping if a parent takes a child without permission? Short Answer: Yes, if there is a custody order in place and the action violates those orders.
- If a father takes a child without permission or a mother does, what are the consequences in Texas? Short Answer: It depends on the circumstances but parents may face fines and jail time for violating a judge’s orders involving child custody.
- What is the parental kidnapping Texas law that pertains to this offense? Short Answer: Texas Penal Code §25.03, Interference with Child Custody.
- Is it considered kidnapping by a parent if you take your child without permission but don’t have custody orders in place? Short Answer: It depends on the circumstances but without a formal custody order there is nothing to enforce, and both parties have equal rights to the child at issue. Those situations can be very challenging, so parents should make it a priority to get a custody agreement or custody order established as soon as possible.
What is parental abduction or parental kidnapping in Texas?
Parental kidnapping and parental abduction refer to the same offense in Texas. Unlike the majority of custody-related issues that are handled by child custody lawyers in the civil courts, parental kidnapping cases are addressed by criminal lawyers in the criminal courts.
In general, if a parent takes a child under the age of 18, or under guardianship over the age of 18, away from another parent in violation of a judge’s orders forbidding them to do so, that parent may be charged with parental kidnapping under Texas Penal Code §25.03, Interference with Child Custody: the key parental kidnapping Texas law.
Judge’s orders include both temporary orders and final orders for child custody. In other words, if you are going through a divorce and have temporary orders in place that name the other parent as the primary conservator, you can’t take your child and fly off to Disneyland during the primary parent’s period of possession without that other parent’s consent. You have to follow the visitation schedule outlined in your orders.
Can a parent legally kidnap their own child in Texas?
According to Texas Penal Code §25.03—the Texas parental kidnapping law referred to as Interference with Child Custody—a person who takes or retains a child under age 18 could be committing an offense under this statute 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;
- 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, without the permission of the court and with the intent to deprive the court of authority over the child; or
- 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.
The statute also states, “A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.”
Concerned parents also wonder: Is taking a child across state lines considered kidnapping? If you take a child under the age of 18 across state lines and deprive the person who is entitled to possession and access to that child in violation of a court order, you may be committing the offense of parental kidnapping (interfering with child custody).
Is parental kidnapping a felony in Texas according to the parental kidnapping Texas law?
Yes, parental kidnapping is considered a state jail felony in Texas. and there are penalties for parental kidnapping. According to Texas Penal Code Sec. 12.35, potential penalties for a parent found guilty of a state jail felony involving parental kidnapping include no less than 180 days and up to two years of jail time, with fines not to exceed $10,000.
Parental abduction offenses can rise to the level of a first degree felony
If a person commits a parental abduction in conjunction with another serious crime, say the crime was aggravated and/or involved the use of a deadly weapon, the parent could be charged with a felony of the first degree (Texas Penal Code Sec. 12.32). A parent convicted of a first degree felony in Texas could face up to 99 years in prison.
Contact a criminal attorney when you suspect parental kidnapping
Since parental kidnapping and associated charges are considered criminal offenses, you should consult a criminal lawyer about the legal process. This is true if you are accusing a former spouse or partner of parental kidnapping or have been accused of parental abduction yourself.
We know occasions may arise when our child custody clients need advice from a criminal attorney during their divorce and child custody proceedings. Our family law firm works closely with criminal lawyers and will refer clients when the need arises.
Parental kidnapping when there is no custody order in place
Is it kidnapping to take your child if you don’t have orders in place? In general, both parents have a right to have access to their child (unless a parent’s parental rights have been terminated). However, without formal custody orders, there is no formal document to enforce.
Law enforcement views these disputes as civil matters
Parents typically find it very challenging to get law enforcement involved when two biological parents haven’t pursued court interventions and have no orders in place. As long as there is no safety issue or endangerment to the child—or breaching of the peace—law enforcement will likely tell you, “This is a civil matter, take it to court, go get some orders,” because both parents have a right to have possession of and access to the child.
When a child is taken, contact a knowledgeable family law attorney right away
If you’re in a situation where you don’t have orders, your child’s other parent has taken the child, and you suspect parental kidnapping, contact a skilled family law attorney immediately. An attorney can help you take steps to get orders put in place that give you a legal right to custody and access, so you can default the other parent and move ahead with enforcing those rights.
Pregnant and not staying together? Get orders in place ASAP
Expectant parents who don’t plan to stay together need to think about establishing custody orders once they realize they are pregnant—not after the child is born. If you find yourself in this situation, start thinking about what you hope custody and access will look like right away and contact an attorney. They can help you get custody orders drafted and signed by the court, so enforceability isn’t an issue.
Can you be charged with kidnapping your own child if you fear for the child’s safety?
Texas Penal Code §25.03 does allow for some defenses from prosecution, and protecting a child from family violence is one of the defenses that may be considered. However, withholding visitation from the other parent can get you into legal trouble, so it’s important to speak with your child custody lawyer about appropriate next steps.
When to involve law enforcement and CPS
If your child truly is in immediate danger, you should contact law enforcement and get Child Protective Services involved, so they can open a case on your child’s behalf. Your attorney can help you get an emergency protective order, then take steps to legally restrict the other parent’s access to your child.
You need clear and convincing evidence of child endangerment
The burden will be on you to provide relevant information and prove the other parent is a danger to your child. You will need to provide clear and convincing evidence that family violence has either occurred or is likely to occur in the future if the other parent has access to the child.
If your child’s other parent has fled with the child, act promptly
There’s another side of the complex coin of parental kidnapping—or at a minimum, denying access—I would also like to address here. I have seen cases where a parent deliberately takes their child out of state, knowing full well they are violating their custody orders but the other parent doesn’t do anything about it right away. The next thing you know, months have gone by.
Oftentimes, the parent resists fighting back because they want to reconcile with their ex, so they don’t want to rock the boat. Sometimes those months can extend into years, and if you wait, the court is going to wonder why you didn’t file for an enforcement and take steps to get your child back. The longer you wait, the more difficult it will be to regain access to your child, so contact an attorney as soon as possible to find out what legal options and civil remedies are available to you.
Have questions about child custody in Texas?
Our Fort Worth child custody lawyers are here to help. To schedule a confidential case review with an attorney at the Sisemore Law Firm, contact our office at (817) 336-4444 or connect with us online.
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