Parental Child Abduction and Interstate Jurisdiction Cases
Parental child abduction is the offense of a Parent wrongfully removing, retaining, detaining or concealing their child from the other parent. This often occurs when parents separate or divorce proceedings begin. The abducting parent may consensually remove or retain the child to gain an advantage in pending child-custody proceedings or because the parent fears losing the child in the divorce proceeding. Many times the abducting parent may refuse to return a child at the end of an approved visit or may flee with the child to prevent the other parent from seeing the child or in fear of domestic abuse.
Many abducting parents try to take the child across state lines (Interstate Jurisdiction issues) or out of the country to make sure that the child will never be found by the other parent. They would rather live a fugitive than lose their child.
Are there any laws to stop this child abduction to another state or country? The Uniform Child Abduction Prevention Act (UCAPA) provides remedies with valuable enforceable tools in deterring both domestic and international abductions by parents and unethical people or agents on their behalf. This Act empowers courts to impose measures designed to prevent child abduction both before and after a court has entered a custody decree. Unfortunately, the UCAPA has only been enacted in eleven states (Alabama, Colorado, Florida, Louisiana, Kansas, Mississippi, Nebraska, Nevada, South Dakota, Tennessee, and Utah) and District of Columbia, since its inception.
In Texas Interference with child custody is a felony!
Texas currently follows the Texas Penal Code 25:03, Interference with Child Custody:
Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. (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.
(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.
(d) An offense under this section is a state jail felony: Minimum term: 180 days to Maximum Term of 2 years; fine up to $10,000.00
Hopefully, in the near future, more states will adopt the Uniform Child Abduction Prevention Act, but until then, if you think you have a problem with your ex trying to kidnap your child, find out what can be done in your state to stop this before it happens!
National Violence against Women Act!
Since 1994, when the US Violence against Women Act first passed, crimes against women have decreased steadily. Now is the time to renew this bill in the US Congress and we need the full support of both Democrats and Republicans to continue this very successful legislation!
The US Department of Justice has issued some new updated data on intimate-partner violence that I wanted share with you:
– From 1994 to 2010, 4 in 5 victims of intimate-partner violence were women. Women between the ages of 18 to 34 experience the highest rates of violence.
– Since the Violence Against Woman Act has been passed in 1994, the rate of intimate-partner violence in the US has declined 64%.
– The Hispanic female rate for intimate-partner violence has declined 78%.
– Attempted rapes have dropped 1/3 from 1990 levels and forcible rapes are down 14%.
This Violence against Women Act is not about politics. It is about life-changing acts of mental and physical abuse done to WOMEN- mothers, daughters, wives, sisters and loved ones. This is a national bill on how to stop the behavior by abusers!
Effective September 1, 2012, Texas SB250 bill, provides stalking as grounds for a protective order. All persons who are victims of stalking have the right to a protective order against their stalker without requiring that the alleged stalker first be arrested for the crime. This legislation also eliminates the need for the stalker to be related, have had relations, or children with the victim before a protective order can be placed. Now more victims who have been exposed to cyber bullying attacks or fixations by strangers and feel that they could be subjected to serious bodily injury or death can petition the court for a protective order.
– If you are a victim of stalking, find a lawyer who is familiar with the Texas SB250 Stalking Law. The victim can petition the county court in either their or the stalker’s county with an affidavit on the stalking situation.
– If the court finds the information in the application for a protective order that there is a definite and present danger of a sexual assault, stalking, or other harm to the victim, the court, without a hearing, may enter a temporary ex parte order for the protection of the victim and other members of the victim’s family or household for a period up to 20 days without notifying the stalker. If the stalker violates the protective order, the victim should immediately call the police who will arrest the stalker for violating the order.
– By allowing victims to seek protection from any type of stalker, no matter of relationship, Texas has provided a new layer of protection to their citizens.
Texas Domestic Violence and The Battered Family
The serious increase of family domestic violence is becoming an epidemic in the Unites States.
Some Appalling facts:
- Every 9 seconds in the US, a woman is assaulted or beaten.
- Domestic Violence is the leading cause of injury to women: more than car accidents, mugging and rapes combined.
- 1 in 4 women have been the victim of severe physical violence by an intimate partner while 1 in 7 men experience severe physical violence by an intimate partner.
- Approximately 15 million children have witnessed some form of domestic violence in the past year..
Texas Domestic Violence Statistics from the Texas Council on Family Violence:
- Texas generates the second highest call volume to the National Domestic Violence Hotline behind California.
- HHSC estimates that 1,130,164 Texas women were battered in 2008.
- 74% of all Texans have either themselves, a family member and/ or a friend experienced some form of domestic violence.
- 47% of all Texans report having personal experience at least one form of domestic violence, severe (physical or sexual), verbal or forced isolation from friends and family at some point in their lifetime.
But most important of all….
73% of all Texans believe that domestic violence is a serious problem in Texas and 60% believe that Texas does not do enough to help survivors and their families!
What are the warning signs of Domestic Violence and do you have any friends or family members showing some of these warning signs?
1. Multiple Injuries and Excuses: the victim has many bruises and elaborate stories about being clumsy to avoid embarrassment.
2. Frequent Absence from Work or School: Visible injury or bruising keeps the victim away from work or school. Also the victim may need to care for themselves, sleep or recuperate from the incident when the abuser is away.
3. Lack of Self- Esteem: Many victims feel they can’t make it alone or they are better off with the abuser as part of their life.
4. Personality Changes: A very outgoing person becoming quite and shy around their abuser. It is much easier to change habits around the abuser than to go through accusations that can escalate to physical violence.
5. Fear of Conflict: Many battered victim show a sense of powerlessness with their other relationships. They tend to get victimized with almost everyone around them. “An easy mark”!
6. Passive-Aggressive Behavior: Victims will many times say one thing and then express anger or frustration in an aggressive manner.
7. Self-Blame: If a person is taking all the blame for things that go wrong in their surrounding environment, this person is probably experiencing emotional abuse at home. An abuser excels in constantly telling the victim that he/she is always “wrong”.
8. Isolation and Control: Adults who are abused are often isolated. This isolation makes the abuser the center of the victim’s universe and purposefully limits the victim’s access to others for total control.
9. Stress-Related Problems: depression, frequent illness, chronic headaches, problems sleeping?
If you do have someone close to you having some of these problems and you suspect domestic violence, please try to get this person immediate help! Many times only a friend or family member can get the victim to go for help!
With Domestic Violence being one of the most chronically under-reported crimes in the United States, what can victims do to help themselves and other family members break free of this abuse?
The legal system can offer some protection from family violence through the use of a Protective Order. A Protective Order is a civil court order that is designed to restrain an abuser from continuing acts of violence and threatening, harassing, or stalking conduct. All victims of family violence are eligible for a Protective Order. A court shall render a protective order if it finds that family violence has occurred and is likely to occur in the future. A victim’s testimony about family violence may be enough to obtain a protective order, without other documents such as police reports.
Statistics obtained from:
Texas Council on Family Violence
National Center on Domestic and Sexual Violence
Social Networking: You Say It Or Show It, You Have to Defend It
Social media provides everyone with a digital treasure trove of information. Always remember what you post online can and often will be used against you.
Approximately one half of all adult internet users in the United States have a profile on a social networking site. A 2010 Nielsen survey shows 22.7% of an American’s time is spent on social networking and continues to grow as social networking is considered the most popular online activity. When posting on Facebook, Twitter, or other social networking sites, just remember the updates you post can cause serious problems when searching for a job, starting a new relationship, or during involvement in a legal issue or lawsuit!
People are now sharing practically everything online. Can this get you in trouble? YOU BET!! Social networking technologies have forced people to learn how to navigate the murky waters between business and pleasure. Such a mixture creates a “Permanent Record” on social networking sites. On Facebook and Twitter, it is very common to see spouses discussing very private issues and sharing it with their “multi” buddies online and “Advertising their Product” for all to see. Social networking sites can provide any one who is confused, angry or distraught with a perfect venue for airing their gripes and disclosing their feelings in public!
Evidence from all social media sites is now being used by prosecutors, defense attorneys, personal injury attorneys, employment attorneys, securities litigators, and particularly family law attorneys. A 2010 American Academy of Matrimonial Lawyers survey found that 81 % of divorce attorneys have increased their use of social media to find evidence against the opposing side. The main source of information is Facebook, with 66% of the attorneys citing it as the source for incrimination information followed by MySpace (15%) and Twitter (5%).
A Wide Variety of Evidence?
1. Incriminating photos
2. Incriminating statements and wall posts
3. Status Updates
4. Mood Indicators
5. List of Friends
6. Login/Log off records for example: not able to work, alcohol/drug use, intimate issues.
How to Preserve Evidence from Social Media Sites?
1. Publicly viewable profiles and content are fair game
2. Subpoenas directed to sites like Facebook are likely dead ends.
3. Well-tailored discovery requests to the person.
4. Motion compelling the user to execute a consent form permitting the discovery seeking party to obtain the profile contents.
How to Authenticate Evidence from Social Media?
1. Stipulation
2. Admission from author/poster.
3. Testimony from person who copied information
Think about these Situations before using Social Media to sound off:
1. If you share a computer with a spouse or business partner and there is a potential break up; create a new web-based email address with a new password to ensure no other unauthorized access.
2. Don’t forget the children! Always more tech-savvy than mom and dad, monitor children to ensure information related to divorce proceedings or family problems do not become part of the internet!
3. Never make online references to finances. No big trips, bonuses or raises at work. This could affect your case adversely.
4. Always be careful with third- party conversations. The internet has many eyes and not just your friends.
The sudden advance and reach of social media is forcing the legal system to adapt quickly. Social media is causing legal professionals to look at new sources of evidence and discovery and to consider the implications of this technology.
Think Before You Post On Social Networking Sites!
Millions of people daily log into their favorite social networking sites to chronicle their lives both personal and professional. All day people visit with friends, business associates or look for new contacts. 9/2012 Pew Report states that 66% of the U.S. population uses social networking websites on a regular basis and 53% of the 50+ year old population engages in social networking!
With more people every day using social media for their online interaction, these websites are affecting the legal and ethical aspects of the personal relationships and the law. Much valuable legal information may be discovered in a lawsuit on these websites which are proving to potentially have devastating results in the court litigation.
Many social networking site users are now looking at the additional options regarding privacy management because of concern with regard to potential legal liability. 63% of the users are deleting people not known from their “friends” list. 44% of these users have deleted comments made by others on their profile, and 37% have removed their name from photos that tagged their identify. (Pew Report 2/2012)
You should exercise careful thoughtful judgment when posting on social networking sites. Think before your post! Could this one click post be potentially damaging to you, to others you care about or to your business relationships? In today’s world, many lawyers are asking very specific questions to their clients concerning email addresses, use of social networking sites and types of personal information a client has posted about themselves, or other information publicly disclosed from other people’s social networking. Many lawyers now ask their clients to stop using or to deactivate (not delete) their social networking sites during their litigation process. Better safe than sorry!
The use of Electronically Stored Information (ESI) is now being addressed by the U.S. Government and many states regarding usage and admissibility in litigation. The Federal Rules have been amended to address ESI and set up a framework on dealing with this information. The rules include ESI to email, web pages, word processing files, computer databases, and just about anything that is stored on a computer. The definition of ESI also includes traditional email, instant and text messaging, voice mail, personal webmail, blogging and other new emerging technologies. Potential relevant information from any of these sources must now be preserved by litigants in the federal courts. Just remember what you do or say online can and will be used against you and/or distorted since: “You Said It”!
NACOL LAW FIRM P.C.
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
