Texas 2011 - 82nd Regular

Texas House Bill HB1207 Compare Versions

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1	1	82R7225 KSD-F
2	2	By: S. Davis of Harris H.B. No. 1207
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to adoption of the Uniform Child Abduction Prevention Act.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subtitle B, Title 5, Family Code, is amended by
10	10	adding Chapter 163 to read as follows:
11	11	CHAPTER 163. UNIFORM CHILD ABDUCTION PREVENTION ACT
12	12	Sec. 163.001. SHORT TITLE. This chapter may be cited as the
13	13	Uniform Child Abduction Prevention Act.
14	14	Sec. 163.002. DEFINITIONS. In this chapter:
15	15	(1) "Abduction" means the wrongful removal of a child
16	16	to another state or nation or the wrongful retention of a child in
17	17	another state or nation.
18	18	(2) "Child" means an unemancipated individual who is
19	19	less than 18 years of age.
20	20	(3) "Child custody determination" means a judgment,
21	21	decree, or other order of a court providing for legal custody,
22	22	physical custody, or visitation with respect to a child. The term
23	23	includes a permanent, temporary, initial, and modification order.
24	24	(4) "Child custody proceeding" means a proceeding in
25	25	which legal custody, physical custody, or visitation with respect
26	26	to a child is at issue. The term includes a proceeding for divorce,
27	27	separation, neglect, abuse, dependency, guardianship, paternity,
28	28	termination of parental rights, and protection from domestic
29	29	violence.
30	30	(5) "Court" means an entity authorized under the law
31	31	of a state to establish, enforce, or modify a child custody
32	32	determination.
33	33	(6) "Petition" includes a motion or its equivalent.
34	34	(7) "Record" means information that is inscribed on a
35	35	tangible medium or that is stored in an electronic or other medium
36	36	and is retrievable in perceivable form.
37	37	(8) "State" means a state of the United States, the
38	38	District of Columbia, Puerto Rico, the United States Virgin
39	39	Islands, or any territory or insular possession subject to the
40	40	jurisdiction of the United States. The term includes a federally
41	41	recognized Indian tribe or nation.
42	42	(9) "Travel document" means a record relating to a
43	43	travel itinerary, including a pass and a reservation for
44	44	transportation and accommodations. The term does not include a
45	45	passport or international visa.
46	46	(10) "Wrongful removal" means the taking of a child
47	47	that breaches a right of custody or visitation given or recognized
48	48	under the law of this state.
49	49	(11) "Wrongful retention" means the keeping or
50	50	concealing of a child that breaches a right of custody or visitation
51	51	provided or recognized under the law of this state.
52	52	Sec. 163.003. COOPERATION AND COMMUNICATION AMONG COURTS.
53	53	Sections 152.110, 152.111, and 152.112 apply to a proceeding under
54	54	this chapter.
55	55	Sec. 163.004. ACTIONS FOR ABDUCTION PREVENTION MEASURES.
56	56	(a) A court on its own motion may order abduction prevention
57	57	measures in a child custody proceeding if the court finds that the
58	58	evidence establishes a credible risk of abduction of the child.
59	59	(b) A party to a child custody determination or an
60	60	individual or entity having a right under state law to seek a child
61	61	custody determination for the child may file a petition seeking
62	62	abduction prevention measures to protect the child under this
63	63	chapter.
64	64	(c) An individual or entity entitled to bring an action
65	65	under Subsection (b) may file a petition seeking abduction
66	66	prevention measures with respect to a child who is not yet the
67	67	subject of a child custody determination.
68	68	(d) A prosecutor or public authority designated under
69	69	Section 152.315 may petition for a warrant to take physical custody
70	70	of a child under Section 163.009.
71	71	Sec. 163.005. JURISDICTION. (a) A petition under this
72	72	chapter may be filed only in a court that has jurisdiction to make a
73	73	child custody determination with respect to the child at issue
74	74	under Chapter 152.
75	75	(b) A court of this state has temporary emergency
76	76	jurisdiction under Section 152.204 if the court finds a credible
77	77	risk of abduction.
78	78	Sec. 163.006. CONTENTS OF PETITION. A petition for
79	79	abduction prevention measures must:
80	80	(1) be verified;
81	81	(2) include a copy of an existing child custody
82	82	determination, if any, and if available;
83	83	(3) specify the risk factors for abduction, including
84	84	the relevant factors described by Section 163.007; and
85	85	(4) subject to Section 152.209(e), if reasonably
86	86	ascertainable, contain:
87	87	(A) the name, birth date, and gender of the child
88	88	at risk for abduction;
89	89	(B) the customary address and current physical
90	90	location of the child;
91	91	(C) the identity, customary address, and current
92	92	physical location of the respondent;
93	93	(D) a statement of whether a prior action to
94	94	prevent abduction or domestic violence has been filed by a party or
95	95	other individual or entity having custody of the child, and the
96	96	date, location, and disposition of such an action;
97	97	(E) a statement of whether either party to the
98	98	action has been arrested for a crime related to family violence or
99	99	child abuse, and the date, location, and disposition of such a case;
100	100	and
101	101	(F) any other information required to be
102	102	submitted to the court for a child custody determination under
103	103	Section 152.209.
104	104	Sec. 163.007. FACTORS TO DETERMINE RISK OF ABDUCTION. (a)
105	105	In determining whether there is a credible risk of abduction of a
106	106	child, the court shall consider evidence that the respondent or the
107	107	petitioner:
108	108	(1) has previously abducted or attempted to abduct the
109	109	child;
110	110	(2) has threatened to abduct the child;
111	111	(3) has recently engaged in activities, other than
112	112	planning activities related to carrying out a safety plan to flee
113	113	from family violence, that may indicate a planned abduction,
114	114	including:
115	115	(A) abandoning employment;
116	116	(B) selling a primary residence or terminating a
117	117	lease;
118	118	(C) closing bank or other financial management
119	119	accounts, liquidating assets, hiding or destroying financial
120	120	documents, or conducting any other unusual financial activities;
121	121	(D) applying for a passport or visa, obtaining
122	122	travel documents, or purchasing travel tickets for the respondent,
123	123	another family member, or the child; or
124	124	(E) seeking to obtain the child's birth
125	125	certificate or school or medical records;
126	126	(4) has engaged in family violence, stalking, or child
127	127	abuse or neglect;
128	128	(5) has failed or refused to follow a child custody
129	129	determination;
130	130	(6) lacks strong familial, financial, emotional, or
131	131	cultural ties to the state or the United States, regardless of
132	132	whether the other parent is a citizen or permanent resident of the
133	133	United States;
134	134	(7) has strong familial, financial, emotional, or
135	135	cultural ties to another state or country and is likely to take the
136	136	child to that country, particularly a country that:
137	137	(A) is not a party to the Hague Convention on the
138	138	Civil Aspects of International Child Abduction and does not provide
139	139	for the extradition of an abducting parent or for the return of an
140	140	abducted child;
141	141	(B) is a party to the Hague Convention on the
142	142	Civil Aspects of International Child Abduction but:
143	143	(i) the Hague Convention on the Civil
144	144	Aspects of International Child Abduction is not in force between
145	145	the United States and that country;
146	146	(ii) is noncompliant according to the most
147	147	recent compliance report issued by the United States Department of
148	148	State; or
149	149	(iii) lacks legal mechanisms for
150	150	immediately and effectively enforcing a return order under the
151	151	Hague Convention on the Civil Aspects of International Child
152	152	Abduction;
153	153	(C) poses a risk that the child's physical or
154	154	emotional health or safety would be endangered in the country
155	155	because of specific circumstances relating to the child or because
156	156	of human rights violations committed against children;
157	157	(D) has laws or practices that would:
158	158	(i) enable the respondent, without due
159	159	cause, to prevent the petitioner from contacting the child;
160	160	(ii) restrict the petitioner from freely
161	161	traveling to or exiting from the country because of the
162	162	petitioner's gender, nationality, marital status, or religion; or
163	163	(iii) restrict the child's ability legally
164	164	to leave the country after the child reaches the age of majority
165	165	because of a child's gender, nationality, or religion;
166	166	(E) is included by the United States Department
167	167	of State on a current list of state sponsors of terrorism;
168	168	(F) does not have an official United States
169	169	diplomatic presence in the country; or
170	170	(G) is engaged in active military action or war,
171	171	including a civil war, to which the child may be exposed;
172	172	(8) is undergoing a change in immigration or
173	173	citizenship status that would adversely affect the respondent's
174	174	ability to remain in the United States legally;
175	175	(9) has had an application for United States
176	176	citizenship denied;
177	177	(10) has forged or presented misleading or false
178	178	evidence on government forms or supporting documents to obtain or
179	179	attempt to obtain a passport, a visa, travel documents, a social
180	180	security card, a driver's license, or another government-issued
181	181	identification card or has made a misrepresentation to the United
182	182	States government;
183	183	(11) has used multiple names to attempt to mislead or
184	184	defraud; or
185	185	(12) has engaged in any other conduct the court
186	186	considers relevant to the risk of abduction.
187	187	(b) In the hearing on a petition for abduction prevention
188	188	measures, the court shall consider:
189	189	(1) evidence that the respondent believed in good
190	190	faith that the respondent's conduct was necessary to avoid imminent
191	191	harm to the child or respondent; and
192	192	(2) any other evidence that may be relevant to whether
193	193	the respondent may be permitted to remove or retain the child.
194	194	Sec. 163.008. PROVISIONS AND MEASURES TO PREVENT ABDUCTION.
195	195	(a) If a petition has been filed under this chapter, the court may
196	196	enter an order that includes:
197	197	(1) the basis for the court's exercise of
198	198	jurisdiction;
199	199	(2) the manner in which notice and opportunity to be
200	200	heard were given to the persons entitled to notice of the proceeding
201	201	under the Texas Rules of Civil Procedure;
202	202	(3) a detailed description of each parent's custody
203	203	and visitation rights and residential arrangements for the child;
204	204	(4) a provision stating that a violation of the order
205	205	may subject the party in violation to civil and criminal penalties;
206	206	and
207	207	(5) identification of the child's country of habitual
208	208	residence at the time of the issuance of the order.
209	209	(b) If after reviewing the evidence, at a hearing on a
210	210	petition under this chapter or on the court's own motion, the court
211	211	finds a credible risk of abduction of the child, the court shall
212	212	enter an abduction prevention order. The order must include the
213	213	provisions described in Subsection (a) and the measures and
214	214	conditions, including those described in Subsections (c), (d), and
215	215	(e), that are reasonably calculated to prevent abduction of the
216	216	child, giving due consideration to the custody and visitation
217	217	rights of both parents. In determining the measures to be ordered,
218	218	the court shall consider:
219	219	(1) the age of the child;
220	220	(2) the potential harm to the child from an abduction;
221	221	(3) the legal and practical difficulties of returning
222	222	the child to the jurisdiction if abducted; and
223	223	(4) the reasons for the potential abduction, including
224	224	evidence of domestic violence or child abuse.
225	225	(c) An abduction prevention order may include one or more of
226	226	the following:
227	227	(1) the imposition of travel restrictions that require
228	228	that a party traveling with the child outside a designated
229	229	geographical area provide the other party with the following:
230	230	(A) the travel itinerary of the child;
231	231	(B) a list of physical addresses and telephone
232	232	numbers at which the child can be reached at specified times; and
233	233	(C) copies of all travel documents;
234	234	(2) a prohibition against the respondent directly or
235	235	indirectly:
236	236	(A) removing the child from this state, the
237	237	United States, or another geographic area without permission of the
238	238	court or the petitioner's written consent;
239	239	(B) removing or retaining the child in violation
240	240	of the child custody determination;
241	241	(C) removing the child from school or a
242	242	child-care or similar facility; or
243	243	(D) approaching the child at any location other
244	244	than a site designated for supervised visitation;
245	245	(3) requiring a party to register the order in another
246	246	state as a prerequisite to allowing the child to travel to that
247	247	state;
248	248	(4) with regard to the child's passport:
249	249	(A) directing the petitioner to place the child's
250	250	name in the United States Department of State's Children's Passport
251	251	Issuance Alert Program (CPIAP);
252	252	(B) requiring the respondent to surrender to the
253	253	court or the petitioner's attorney any United States or foreign
254	254	passport issued in the child's name, including a passport issued in
255	255	the name of both the respondent and the child; and
256	256	(C) prohibiting the respondent from applying on
257	257	behalf of the child for a new or replacement passport or visa;
258	258	(5) as a prerequisite to exercising custody or
259	259	visitation, requiring the respondent to provide:
260	260	(A) to the United States Department of State
261	261	Office of Children's Issues and the relevant foreign consulate or
262	262	embassy an authenticated copy of a court order detailing passport
263	263	and travel restrictions for the child;
264	264	(B) to the court:
265	265	(i) proof that the respondent has provided
266	266	the information in Paragraph (A); and
267	267	(ii) an acknowledgment in a record from the
268	268	relevant foreign consulate or embassy that no passport application
269	269	has been made, or passport issued, on behalf of the child;
270	270	(C) to the petitioner, proof of registration with
271	271	the United States embassy or other United States diplomatic
272	272	presence in the destination country, and with the Central Authority
273	273	for the Hague Convention on the Civil Aspects of International
274	274	Child Abduction, if that convention is in effect between the United
275	275	States and the destination country, unless one of the parents
276	276	objects; and
277	277	(D) a written waiver under the federal Privacy
278	278	Act of 1974 (5 U.S.C. Section 552a), with respect to any document,
279	279	application, or other information pertaining to the child
280	280	authorizing disclosure of them to the court and the petitioner; and
281	281	(6) on the petitioner's request, a requirement that
282	282	the respondent obtain an order from the relevant foreign country
283	283	containing terms identical to the child custody determination
284	284	issued in the United States.
285	285	(d) In an abduction prevention order, the court may impose
286	286	conditions on the exercise of custody or visitation that:
287	287	(1) limit visitation or require that visitation with
288	288	the child by the respondent be supervised until the court finds that
289	289	supervision is no longer necessary and order the respondent to pay
290	290	for the supervision;
291	291	(2) require the respondent to post a bond or provide
292	292	other security in an amount sufficient to serve as a financial
293	293	deterrent to abduction, the proceeds of which may be used to pay for
294	294	the expenses of recovery of the child, including attorney's fees
295	295	and actual costs if there is an abduction; and
296	296	(3) require the respondent to obtain education on the
297	297	potentially harmful effects to the child from abduction.
298	298	(e) To prevent imminent abduction of a child, a court may:
299	299	(1) issue a warrant to take physical custody of the
300	300	child under Section 163.009 or other law of this state;
301	301	(2) direct the use of law enforcement to take any
302	302	action reasonably necessary to locate the child, obtain return of
303	303	the child, or enforce a custody determination under this chapter or
304	304	other law of this state; and
305	305	(3) grant any other relief allowed under other law of
306	306	this state.
307	307	(f) The remedies provided in this chapter are cumulative and
308	308	do not affect the availability of other state remedies to prevent
309	309	child abduction.
310	310	Sec. 163.009. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD.
311	311	(a) If a petition under this chapter contains allegations, and the
312	312	court finds that there is a credible risk that the child is
313	313	imminently likely to be wrongfully removed, the court may issue an
314	314	ex parte warrant to take physical custody of the child.
315	315	(b) The respondent on a petition under Subsection (a) must
316	316	be afforded an opportunity to be heard at the earliest possible time
317	317	after the ex parte warrant is executed, but not later than the next
318	318	judicial day unless that date is impossible. In that event, the
319	319	court shall hold the hearing on the first judicial day possible.
320	320	(c) An ex parte warrant to take physical custody of a child
321	321	must:
322	322	(1) recite the facts on which a determination of a
323	323	credible risk of imminent wrongful removal of the child is based;
324	324	(2) direct law enforcement officers to take physical
325	325	custody of the child immediately;
326	326	(3) state the date for the hearing on the petition; and
327	327	(4) provide for the safe interim placement of the
328	328	child pending further order of the court.
329	329	(d) If feasible, before issuing a warrant and determining
330	330	the placement of the child after the warrant is executed, the court
331	331	may order a search of the relevant databases of the National Crime
332	332	Information Center system, including those pertaining to
333	333	protection orders, historical protection orders, warrants, sex
334	334	offender registries, and persons on supervised release, and similar
335	335	state databases to determine if either the petitioner or the
336	336	respondent has a history of family violence or child abuse.
337	337	(e) The respondent must be served with the petition and
338	338	warrant when, or immediately after, the child is taken into
339	339	physical custody.
340	340	(f) A warrant to take physical custody of a child, issued by
341	341	this state or another state, is enforceable throughout this state.
342	342	If the court finds that a less intrusive remedy will not be
343	343	effective, it may authorize law enforcement officers to enter
344	344	private property to take physical custody of the child. If required
345	345	by exigent circumstances, the court may authorize law enforcement
346	346	officers to make a forcible entry at any hour.
347	347	(g) If the court finds, after hearing, that a petitioner
348	348	sought an ex parte warrant under Subsection (a) for the purpose of
349	349	harassment or in bad faith, the court may award the respondent
350	350	reasonable attorney's fees, expenses, and costs.
351	351	(h) This chapter does not affect the availability of relief
352	352	allowed under other law of this state.
353	353	Sec. 163.010. DURATION OF ABDUCTION PREVENTION ORDER. An
354	354	abduction prevention order remains in effect until the earliest of:
355	355	(1) a time stated in the order;
356	356	(2) the date the child is emancipated;
357	357	(3) the date of the child's 18th birthday; or
358	358	(4) the date the order is modified, revoked, vacated,
359	359	or superseded by a court with jurisdiction under Sections 152.201
360	360	through 152.203.
361	361	Sec. 163.011. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
362	362	In applying and construing this chapter, consideration must be
363	363	given to the need to promote uniformity of the law with respect to
364	364	its subject matter among states that enact it.
365	365	Sec. 163.012. RELATION TO FEDERAL ELECTRONIC SIGNATURES IN
366	366	GLOBAL AND NATIONAL COMMERCE ACT. This chapter modifies, limits,
367	367	and supersedes the federal Electronic Signatures in Global and
368	368	National Commerce Act (15 U.S.C. Section 7001 et seq.) but does not
369	369	modify, limit, or supersede Section 101(c) of that Act or authorize
370	370	electronic delivery of any of the notices described in Section
371	371	103(b) of that Act.
372	372	SECTION 2. Subchapter I, Chapter 153, Family Code, is
373	373	repealed.
374	374	SECTION 3. The changes in law made by this Act apply to a
375	375	suit affecting the parent-child relationship pending in a trial
376	376	court on the effective date of this Act or filed on or after that
377	377	date.
378	378	SECTION 4. This Act takes effect September 1, 2011.