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.