Under Texas Penal Code 25.10, the criminal offense of interfering with the rights of a guardian is essentially the legal name of the offense of parental kidnapping. An individual commits this offense if they or keep a child who is younger than 18 years of age and one of the following applies:
- Violation of court custody order: The individual knows that taking or keeping the child violates the terms of a judgment or court order, including a temporary order, relating to the physical custody of a child;
- Removal from court jurisdiction: The individual has not been awarded custody of the child by a court and knows that a lawsuit for divorce or a civil suit or application for habeas corpus to determine the child’s custody has been filed in a court and the individual takes the child out of the court’s jurisdiction without the court’s permission and with the intent to deprive the court of its authority over the child; or
- Removal from the United States: The individual takes a child out of the United States with the intent to deprive another individual who is entitled to physical custody of or access to the child of their physical custody or access without the permission of the other individual;
- Enticement: A parent who does not have custody of a child commits this offense if:
- They do so with the intent to interfere with the lawful custody of a child younger than 18 years;
- The non-custodial parent entices the child to leave the physical custody of the custodial parent, guardian, or individual who stands in place of the custodial parent or guardian of the child.
Parental kidnapping typically arises in situations in which the perpetrator is the parent who does not have custody of their child. An individual has any questions or concerns related to interfering with the rights of the guardian of the person. In this case, they should consult with a local Texas attorney.
What Is Parental Kidnapping?
In the State of Texas, the crime that is commonly called parental kidnapping is technically called interfering with the rights of a guardian. Under Texas criminal laws, parental kidnapping involves a minor child and any one of the five possible scenarios listed below:
- The perpetrator takes a child from the parent who has physical custody in violation of a child custody order;
- The perpetrator may keep the child when they should be returned to their custodial parent, for example, when their visitation time ends;
- Parental kidnapping can also be committed if legal action regarding the child’s custody is pending and the perpetrator takes the child away from the court’s jurisdiction;
- An individual can also commit the crime of parental kidnapping if they take a child out of the U.S. in order to deprive the custodial parent of their custody of the child; or
- An individual commits parental kidnapping when they entice a child to leave the physical custody of their custodial parent.
Texas also has a law prohibiting an agreement to abduct from custody. Under this law, an individual is guilty if they promise or agree to abduct a minor who is younger than 18 years of age from the custody of another or if two or more individuals conspire to kidnap the minor.
What Does “Possessory Right” Mean?
In the State of Texas, the parent who has a possessory right to a minor child has a right to visitation. This parent does not have physical custody of the child but has an equally enforceable right to periodic, scheduled visits with the child.
In Texas, a non-custodial parent is called the possessory conservator. This parent’s right to visitation is called the right to possession.
The order from a court that governs a non-custodial right to possession is called a possession order. With a standard possession order from a Texas court, in cases where parents reside within 50 miles from one another, the non-custodial parent, or possessory conservator, has the right to possession of the child on the first, third, and fifth weekends of every month.
The possession begins at the time the child is dismissed from school on Friday and ends when school starts the following Monday. There are, of course, other arrangements that may be possible, depending on the facts of a case.
A standard possession order provides that the possessory conservator has the child for 30 days in the summer and on alternating holidays. The precise dates and times for holiday possession would be included in the order.
What Does “Ward” Refer To?
Under Texas criminal laws, a ward is a child to which an individual has a court-ordered right to custody or a possessory right. If an individual has a legal guardian, they are called the ward of the guardian.
For example, the offense of harboring a runaway explained below, may be committed when a child, called a “ward,” voluntarily runs away from their guardian’s home and stays with the perpetrator who does not report the situation to law enforcement.
Is Parental Kidnapping the Same as Harboring a Runaway Child?
The criminal offense of harboring a runaway is a different offense than parental kidnapping in Texas. An individual commits this offense when they knowingly provide shelter to a child and acts in a criminally negligent manner with regard to whether the child is younger than 18 and one of the following applies:
- Escape from custody: The child escaped from:
- The custody of a peace officer;
- A probation officer;
- The Texas Youth Council;
- A juvenile detention facility;
- Runaway: The child has voluntarily left home without the consent of their parent or guardian for a long time or with no intent to return.
There may be some defenses to the crime of harboring a runaway, including:
- Relative: The alleged perpetrator is a relative of the child within the second degree;
- Notification: The alleged perpetrator notified an individual at the child’s home or agency from which the child escaped or a law enforcement agency of the presence of the child with the alleged perpetrator within 24 hours.
The main difference between harboring a runaway and parental kidnapping is the behavior of the child. By a parental kidnapping, the perpetrator takes the child against their will.
With harboring a runaway, the child left the physical custody of an individual of their own volition and went to the alleged perpetrator.
How Do I Press Charges for Custodial Interference?
If a parent is dealing with custodial interference, it is up to them to file a case. This can be accomplished by contacting their local law enforcement agency and speaking with someone who handles child abduction or family cases.
If violence or a kidnapping has occurred, law enforcement officials may arrest the responsible parent.
What Is the Punishment for Interfering the Rights of a Guardian?
The offense of interference with child custody, which includes any conduct that violates a court order governing custody, is a state jail felony in Texas. If convicted of this offense, an individual may face:
- Imprisonment term of 6 months to two years;
- Criminal fines of up to $10,000;
- A combination of both.
The prosecution may also charge an individual with related offenses, which can increase their punishment, for example, weapons charges, if a deadly weapon was used when taking the child. In addition, the length of imprisonment may be increased if there is a charge of child abuse during the time of the alleged kidnapping.
Do I Need the Help of a Lawyer for My Parental Kidnapping Charge?
You may have been charged with interference with the rights of the guardian of the person in Texas, interference with child custody, or harboring a runaway. In that case, it is essential to consult with a Texas criminal defense lawyer. Your attorney can review your case and determine what defenses you may be able to present.
Your attorney can also negotiate with the prosecution to reduce your charges or get a plea deal. It is important to have a lawyer protecting your rights any time you interact with the legal system.
