Last week we introduced you to some of our efforts to curb child custody interference. Our initiatives are focused on non-legislative solutions at the moment. However, we are still working towards a legislative solution as well.

In our family issues support groups, the most common problem we see is alienation issues, which is a parent attempting to influence the children to take their side in an argument or divorce. This is also known as domestic violence by proxy. It is very destructive to the child but also all too common. Alienation issues thrive when there is a lack of adequate parenting time for both parents. While we can not legislate morality to prevent parents from involving children in their agenda of harmful behavior, we can try to minimize the effects by giving parenting time to both parents. Access to children by both parents is crucial to the formation of a healthy child and the eventual adult that hopefully will be prepared to raise healthy children themselves. The first step to combating alienation is maintaining visitation after separation. Texas does have strong laws meant to ensure visitation in separating families. However, Texas Penal Code 25.03 Interference with Child Custody, is a poorly written, almost unenforceable law.

To shed light on this, here are a couple of examples taken directly from the Statute.

https://codes.findlaw.com/tx/penal-code/penal-sect-25-03.html

  • Section (3) (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 or the county, within three days after the date of the commission of the offense.

This renders weekend visitations almost unenforceable. Police Chiefs have told me they don’t even try to enforce visitation due to this section of the Statute. This defense has been used several times effectively by custodial parents and their attorneys.

Another example of futile enforcement of the law is;

  • (C)(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. This last example emphasizes how this law seems to be written strictly for the custodial parent to break the law legally. All the custodial parent needs to do is accuse of domestic violence to skirt the law.
  • (c-2) Subsection (a)(3) does not apply if, at the time of the offense, the person taking or retaining the child: (2) was fleeing the commission or attempted commission of family violence.

Time after time, there is no accountability required of the custodial parent. These examples make it difficult in the best of situations for district attorneys to prosecute. The penalties of this law as a State Jail Felony further reduce the likelihood of prosecution as jail felonies are time-consuming, expensive for the county, and challenging to get past a grand jury when the law is ambiguous. Also, no one wants to put a custodial parent in jail. District attorneys would instead devote available resources to murder and other violent crime cases. Taking into account all the above reasons, I thought it was best to seek a solution not involving law enforcement or the district attorney’s office. Oklahoma’s current law does this effectively.

Oklahoma passed SB1612 in November 2014.  This law affirms non-custodial parent’s rights. It punishes custodial parents for interference with those rights. It also ensures constant and continual access to both parents for the child. Under Oklahoma’s law, if a non-custodial parent is denied visitation there is no calling the police, or filing contempt charges, or pleading with a family law judge to enforce the law, or involving the district attorney. Instead, the non-custodial parent files for a hearing at the courthouse. Trials are guaranteed within 21 days, and the Judge SHALL rule on the matter. There is no “try harder” to the custodial parent, or avoiding the topic altogether. Every offense is a $500 fine. The non-custodial parent brings the judges orders showing the possession time and the custodial parent has very few options for noncompliance.

We turned Oklahoma’s law into Texas language with a few changes; first, the trial date was reduced to 10 days after filing for a hearing. Several other provisions for a make-up time were added and other penalties that could affect custody orders. However, we were not able to convince the legislative sponsor to maintain the judge SHALL rule, but instead substituted a judge MAY rule. We believe this weakened the Bill, but the legislator did not want to limit the judge’s discretion.

Below is House Bill HB3883, sponsored by Rep. James White, in the 85th(R) session, 2017.

https://capitol.texas.gov/tlodocs/85R/billtext/html/HB03883I.htm

Unfortunately, HB3883 was not given a committee hearing due to several factors unrelated to the Bill’s merits.  This Bill addresses possession issues as a Class C misdemeanor and attempts to modify behavior with the pressure of a Class C fine. The Bill also includes a modification to the family code to allow a Class C misdemeanor. HB3883 has passed through the Legislative Council and also had a financial analysis reviewed. HB3883 carries with it a possibility of a change of custody, parenting classes, posting a bond, and counseling. One of the main obstacles to any enforcement of an ICC case will be factors related to a change of custody and the procedures for this. My thought in writing this Bill was the family law judge would be involved after a couple of Class C convictions. Although these cases could be heard in courts as low as a JP court, the court records could be introduced into an ongoing family law case. The family law judge could issue a warrant for a felony if deemed appropriate, and the DA would have a far easier time convicting on a felony charge of 25.03 with several Class C convictions.

The family law judge could also review an application for a custody change. This legislation allows a non-custodial parent denied visitation to go directly to the courts and request a hearing. This Bill bypasses police and District Attorney involvement. This Bill also has a five-year success rate in Oklahoma.

Pros

  • This simplifies the procedure for parents to enforce their rights.
  • This Statute decreases the need for modification. This reduces lengthy litigation by providing a more straightforward solution. No requirement for discovery or change. No lengthy delays. No mediation and no studies. So, no extra work or expense for attorneys, judges, or parents and faster resolution.
  • Our hope is this would also reduce the ability for parents to use the children in their fight against the other parent, and reduce the alienation possibilities.
  • Bypasses Law Enforcement completely.
  • Potentially huge savings to Law enforcement in phone calls, dispatch, civil standbys, reports taken, and paperwork.
  • Bypasses DA completely.
  • Judge SHALL make a ruling on visitation denied. The current version has MAY rule. We are working with Rep. White to satisfy his concerns of judges discretion.
  • Compensating visitation time for the visitation denied and asked for counseling, classes, and potentially a bond posted against future violations.
  • Attendance of one or both parents at counseling or educational sessions which focus on the impact of visitation disputes on children.
  • Any other remedy the court considers appropriate, which may include an order which modifies a prior order granting child custody.
  • The prevailing party SHALL be granted reasonable attorney fees, mediation costs, and court costs.
  • There should be a fine similar to a Class C misdemeanor, up to $500.
  • The decree would also explain that the custodial parent must show cause as to why the visitation schedule was not violated.
  • This might force more unmarried parents (fathers) to obtain judges orders, so there is an avenue to visitation. DA’s should like this!
  • DA’s have said that child support is much more likely to be paid by parents who are allowed visitation.
  • DA’s would also have a far easier time prosecuting the felony offense of 25.03 if a parent were to be found guilty of several of the lesser charge of a Class C misdemeanor.
  • This type of case will have zero impact financially on the court system, and in fact, a fine of up to $500 could mean this type of case could be a source of income to a county.
  • If this type of case were allowed to be heard in JP courts, many of the rural communities could try this case locally. Also, a source of income to small communities and would reduce the burden on Family Law courts.
  • We have no statistics for this, but I wonder how many visitation arguments escalate to domestic violence situations.
  • Children would greatly benefit from constant and continuous contact with both parents.
  • The ability of one parent to “alienate” a child from the non-custodial parent would significantly decrease if there were constant and continual contact.
  • ALL Current laws for child protection and domestic violence protection remain in place.
  • I feel 25.03 is an enormous waste of law enforcement resources that can be better utilized elsewhere.
  • This law would help facilitate a two-parent family with the child even if the parents are not living together.
  • We added more relaxed enforcement that does not require contempt.
  • This Bill also requires future divorce decrees define the penalty should the custodial parent deny the visitation rights of the non-custodial parent.
  • The affirmative defense for this charge would be: Not allowing visitation if a parent is fleeing domestic violence, or suspecting drug or alcohol use. In which case, the custodial parents need to contact the police.

Cons

  • Unreasonable filings for court dates could clog court calendar. (if a parent is 5 minutes late in returning the child (s) this should not constitute a reasonable use of court time)
  • Perhaps there should be minimum requirements needed to take a case to trial printed on the court form, so parents know what will be asked of them to prove their case.

The Oklahoma Law      

http://webserver1.lsb.state.ok.us/cf_pdf/2013-14%20ENR/SB/SB1612%20ENR.PDF �”�

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