Parental Kidnapping in Texas: When Taking Your Child is a Felony
Posted on by Michael Lowe.
Back in 1996, our Dallas-Fort Worth metroplex was the first place in the country to use a widespread broadcasting alert to help find missing children in a system that has come to be known around the world as the “AMBER Alert System.” Today, phone notifications, flashing highway signs, and breaking news stories share information about a child reported to be missing by law enforcement.
According to one research study of AMBER Alerts reported between 2006 and 2014, parents are the most often alleged abductors in these alerts (67.92%) with fathers (43.43%) being much more likely than mothers (24.49%) to be targeted for the unauthorized taking of their child.
From a criminal defense perspective, these statistics come with a serious warning to any parent considering removing their child outside of legal custody parameters. Even if the boy or girl is your biological son or daughter, in the State of Texas these actions can result in felony criminal charges being filed against you by the local District Attorney’s Office for kidnapping charges including violation of Texas Penal Code §25.03, Interference with Child Custody (“Parental Kidnapping Act”).
- In short, even if you are the biological parent and your child wants to be with you, you can face criminal conviction on felony kidnapping charges.
Federal Kidnapping Law Exempts Parents From Being Charged Under Federal Law
As a general rule, these will be state prosecutions under Texas state law. This is because there is no corresponding federal statute for “parental kidnapping” that can be pursued by federal agents. Even if the child is taken across state lines, the federal government will not become involved in a parental kidnapping charge.
This is because Congress has inserted specific language in the federal kidnapping laws (18 U.S.C. § 1201) that exclude parents from being charged with federal kidnapping crimes.
There is an exception here, of course. If the biological parent has had their parental rights terminated by a Texas judge, then they are not protected by this exclusion under federal law. Parents can lose their legal rights as a parent under Texas Family Code §161.001.
In these situations, a biological parent whose rights have been terminated is not considered to be a “parent” as that term is defined under the federal statute (18 U.S.C. § 1201(a), (h)) and can face federal kidnapping charges.
Parental Kidnapping Under Texas Law: Felony Charges
In Texas parental kidnapping cases, there is often a divorce or custody proceeding on file in the civil public records involving the parents and their rights to have physical possession of their child. Sometimes, the divorce or child custody issues are pending before a Texas civil court. In other instances, there may be signed custody orders on file in the public record that dictate the parent’s custodial limitations.
Here, the parent takes the child in violation of the judge’s mandates, either in temporary proceedings or formal custody orders. Maybe the parent just makes a mistake. Maybe the parent intentionally and with knowledge of their limits decides to take their child in violation of legal edict.
In any event, the parent who takes the child in violation of the judge’s formal dictate can be pursued by police and arrested for violation of Texas Penal Code §25.03, Interference with Child Custody.
Specifically, the statute provides:
(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, without the permission of the court and with the intent to deprive the court of authority over the child; or
(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.
(b) 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.
Penalties for Parental Kidnapping: Felony Conviction and Sex Offender Registration
The Texas Parental Kidnapping Statute defines its punishment as a “state jail felony,” which means that upon conviction, the parent faces up to two (2) years in jail and fines up to $10,000. Texas Penal Code §25.03(d).
- For more on felony convictions, read Felony Charges under Texas and Federal Law: Criminal Defense Overview.
However, if the prosecutor can prove up additional circumstances involving other related felony charges, then the range of punishment will increase. This can include weapons charges if a deadly weapon was used during the taking of the child. It may also involve serious felony time if there are allegations of child abuse by the parent during the time of the alleged kidnapping.
In these situations, the prosecutor may seek to convict based upon separate and independent criminal charges to Texas Penal Code §25.03, Interference with Child Custody . For instance, if a gun was involved, the ADA may go after serious felony weapons charges. For more, read Weapons Charges in Texas: Gun Laws and Gun Crimes under Texas Law.
Sex Offender Registration by the Convicted Parent With Terminated Rights
Divorce proceedings are not the only arena in which parental rights are adjudicated. Actions can also be filed seeking a judge to terminate parental rights, and if successful the parent is legally deemed to have no legal rights to the child whatsoever. Texas Family Code §161.001.
In these situations, if the parent then takes their child – no matter how much the child recognizes them as their mother or father – they will face a more serious criminal charge in Texas courts. The ADA may seek a conviction based upon kidnapping under Texas Penal Code §20.03, for instance, if the parental rights were terminated.
This can have serious felony sentencing consequences, of course. However, many parents may be shocked to discover that if they are convicted of kidnapping, they may face the additional punishment of having to register as a sex offender pursuant to Chapter 62 of the Texas Code of Criminal Procedure. See, Dewalt v. State, 417 S.W.3d 678, 689 (Tex. App.-Austin 2013), pet. ref’d, 426 S.W.3d 100 (Tex. Crim. App. 2014).
In Dewalt, after a mother lost her Texas child custody fight, she took her pre-school aged son to Mexico only to be arrested on kidnapping charges three years later. Upon conviction, because (1) of the kidnapping charge and (2) the affirmative finding that her son was under the age of 17 years at the time of the offense, she was legally required to register as a sex offender on the national sex offender registry. Dewalt, 426 S.W.3d at 101.
There was no allegation, much less any finding of sexual abuse in the matter. This was a kidnapping case. Nevertheless, the mother upon conviction of kidnapping, had to register as a sex offender.
The court explained that the mother, “…is, in the eyes of Texas law, a `sex offender’ who must self-report as such through the end of the current decade.” Dewalt, 426 S.W.3d at 101.
While a parent convicted of kidnapping may abhor even the suggestion of any sexual violation of their child, the reality of being on the Texas sex offender registry is a real concern.
The parent may be classified at the lowest risk level (unlikely to commit a sex crime), but he or she will still have to face the stigma and life-altering consequence of public registration which includes providing personal information such as their date of birth, a physical description (height, weight, etc.), and residential address. Texas Code of Criminal Procedure Article 61.001(5)(E).
This may seem strange or unfair. However, as Dewalt clarifies:
Texas first created a sex offender registration requirement in 1991. In 1999, the Texas Legislature added kidnapping and aggravated kidnapping to the list of offenses requiring sex offender registration if the victim was under 17 years of age at the time of the offense. This amendment was a specific reaction to the federal Jacob Wetterling Crimes Against Children and the Sexually Violent Offender Registration Act of 1994, which forced states to choose between a reduction in federal funding or conforming sex offender registration requirements to a federal standard. Although the Jacob Wetterling Act required states to add kidnapping to their lists of registration-requiring offenses, the act contained an explicit exception for kidnapping committed by a child’s parent. Furthermore, the Attorney General’s guidelines recognized that, while federal law required registration of offenders who commit offenses against minor victims, “[i]t is a matter of state discretion under these clauses whether registration should be required for [kidnapping] in cases where the offender is a parent of the victim.” Either intentionally or through oversight, the Texas Legislature did not include any such exception.
For more on the Texas Sex Offender Registry, read:
- Texas Sex Offender Registry List Is Huge But Not Every Listed Sex Offender Is an Adult Who Committed a Sex Crime
- Sex Offender Registry in Texas: Stigma and Second Chances
- Texas Sex Offender Deregistration Synopsis: Overview And Steps For Name Removal.
Defenses to Parental Kidnapping Charges in Texas
No matter the scenario, in Texas parental kidnapping involves a parent either taking their child or keeping custody of their child in violation of the court’s determination of their custody rights and limitations.
Scope of the Parent’s Rights
Therefore, the first thing to consider from a criminal defense perspective is the parent’s legal relationship with the child. If there is no court order defining child custody for the parent, then the parent cannot be charged with parental kidnapping.
Absent a judge’s custody oversight in either a divorce proceeding or custody dispute filed in civil court, each parent has a right to take their child with them unless their parental rights have been terminated.
Each parent has an equal right to spend time with their biological child or legally adopted child, and it is not illegal to do so if they are legally the parent of their son or daughter. Kidnapping charges in Texas must be based upon violation of some form of official court order that defines custody parameters for the child and the legal status of the parent.
Statutory Defenses in the Parental Kidnapping Act
Another criminal defense task will be to investigate whether or not there is admissible evidence of any one of the defenses defined within the Act itself. The statute provides several defenses:
(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 three days after the date of the commission of the offense.
(c-1) It is an affirmative defense to prosecution under Subsection (a)(3) 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 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.
(c-2) Subsection (a)(3) does not apply if, at the time of the offense, the 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 person.
Evaluation of the Prosecutor’s Case
A concerted effort will also be undertaken by the defense attorney to evaluate the evidence contained within the state’s file as well as the range of charges filed against the accused by the ADA.
Has an overly zealous prosecutor stacked charges in the case which might be reduced during plea negotiations or dismissed in a pretrial hearing? For example, have corresponding felonies of Texas Penal Code§ 25.031 (Agreement to Abduct from Custody) or the felony of Enticing a Child (TPC §25.04) also been charged against the accused parent?
What about the gathering of the evidence in the case: was there an illegal search and seizure? Did the police violate constitutional rights during their investigation or arrest?
- Don’t Ever Talk To The Police! Never Give A Statement To Law Enforcement In Texas Criminal Investigation
- Will You Go to State Jail or Texas Prison? The Importance of Plea Negotiations.
Parental Kidnapping Criminal Charges Warrant a Criminal Defense Lawyer as Advocate
Any parent arrested for incidents involving their child must understand that even their most dedicated family law attorney practices in the civil justice system which is very different from the criminal justice courts.
Family law is a different area of legal practice from criminal defense. Each has different rules of procedure; different rules of evidence; different burdens of proof; and different presiding judges.
In many locations, civil and criminal proceedings take place in entirely different courthouses.
Therefore, anyone facing serious felony charges, even if there is a pending family law divorce matter or custody dispute, would be wise to have the independent advocacy of an experienced kidnapping criminal defense attorney.
- Family Violence in Texas: Crimes Based Upon Domestic Violence – It’s More Than a Fight That Turns Physical
- Domestic Assault in Texas: Family Violence between Those Living in the Same Household
- Domestic Violence in Dallas: Arrests Are a Priority for Dallas Police.
For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles,” Pre-Arrest Criminal Investigations” and “10 Questions to Ask Before You Hire a Criminal Defense Lawyer.“
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