Enforcement of Custody Orders

Question 1

Habeas Corpus

Answer 1

Habeas corpus is a legal remedy that can be used to recover the immediate possession of a child whose possession is being withheld in violation of a valid court order of custody by a TX or outside jurisdiction.

Question 2

Habeas Corpus - Generally

Answer 2

The only issue in a habeas corpus proceeding is whether there is a valid court order awarding custody–even if it is a non-Texas order. If there is a valid order, the habeas court will compel the return of the child to the relator.

Question 3

Habeas Corpus - Exceptions

Answer 3

1) Realtor relinquished possession (for not less than 6 months when filed - court has discretion or if brief periods of possession and control)
2) Welfare of child - serious immediate question concerning child’s welfare
3) No re-litigation unless due process concerns in prior proceeding
4) If no custody order, parent may bring habeas against non-parent

Question 4

Habeas Corpus - Jurisdiction

Answer 4

The realtor may file the habeas petition in the county where the child is found or in a court of continuing, exclusive jurisdiction under the SAPCR.

Question 5

Statutory Tort for Interference with Child Custody

Answer 5

Damages in tort are available against a person who “takes or retains possession of a child or who conceals the whereabouts of a child” in violation of a court order. A possessory right is violated by the taking, retaining, or concealment of a child at a time when another person has the right of possession or access to the child.
A) Damages
B) Third Party Involved
C) Frivolous Suit

Question 6

Contempt

Answer 6

A court may use contempt to enforce a final order for possession of and access to a child. The use of a contempt remedy may also be used for MCs who fail to give possessory conservators access to a child.

Question 7

Criminal Liability

Answer 7

A person who takes or retains a child younger than 18 in violation of a custody order also commits a state felony. It is a defense to prosecution if child was returned within 3 days.

Question 8

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 8

The UCCJEA is designed to prevent jurisdictional disputes between states and to facilitate interstate enforcement of custody and visitation orders; it applies when parents are residents of different states.

Question 9

UCCJEA - Jurisdiction

Answer 9

A TX court has jurisdiction to make initial custody determinations in the following situations (in descending order):

i) The home state where the child has lived for the last 6 months at the time the suit is first filed
ii) Texas, if
a) No other state has jurisdiction, or a court of the child’s home state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum;
b) The child and at least one parent have a significant connection with this state other than mere physical presence; and
c) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships
iii) TX, if all courts having jurisdiction under (i) or (ii) have declined to exercise jurisdiction on the ground that a court of this state is more appropriate
iv) TX, if no other state would have jur. under the criteria specified above

Question 10

UCCJEA - Continuing & Exclusive Jurisdiction

Answer 10

A court that mad the initial child custody determination has continuing, exclusive jurisdiction until:

i) A court determines that neither the child nor the parents have a significant connection w/ this state and that substantial evidence is no longer available in this state concerning child’s care, etc.
ii) A court determines that neither the child nor the parents still reside in state

Note: A court may decline jurisdiction if under the circumstances it determines that forum is inconvenient and a court in another state is more appropriate.

The factors that a court will consider when making this determination include:

i) Length of time child has resided outside the state;
ii) Whether domestic violence is involved
iii) Distance between the courts
iv) Nature and location of evidence; and
v) Relative financial circumstances of the parties

• A court may assume temporary emergency jurisdiction in the cases of abandonment or abuse.

Question 11

Enforcement of another state’s order

Answer 11

1) Registration of order
2) Expedited enforcement of child custody determination
3) Warrant to take immediate custody of child
4) Parental Kidnapping Prevention Act