|
Most people readily understand the criminal nature of kidnapping. It is the taking of a person against their will -- normally across state lines -- and keeping their freedom from them. It is a combination of false imprisonment and abduction. No one ever quarrels with the criminal nature of such conduct. Unfortunately, some people do not appreciate the criminal nature of child abduction by a parent. This crime entails a person abducting their own child in defiance of an existing court order and secreting the child from the person with whom the child is placed by the order. Some people who do so are hailed as heroes and an entire underground support system actually exists to facilitate the crimes committed. Regardless of the sometimes noble rhetoric employed by such people, the simple fact is a parent who does such an act (and the person who helps) is a criminal. The crime is made a felony by both most state and federal laws. Those who knowingly facilitate the crime are themselves guilty of the commission of the crime and are punished as if they had committed the crime. The sad fact is that a sizeable portion of those children who are reported missing are, in fact, abducted by their own parents and hidden from the other parent and the court system charged with protecting the child. Exceptions do exist to the commission of a criminal offense. However, they are few and far between. The exceptions almost all revolve around the existence of a bona-fide emergency which mandates the taking of the child from its present situation. In such instances it is incumbent on the person with the child to seek judicial intervention into the matter to best protect the child. In Texas, pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), a Texas court may exercise temporary jurisdiction over a child -- even if another state properly exercises continuing home-state jurisdiction over the child -- if the child has been the victim of or the threatened victim of significant abuse or neglect, or if a serious and immediate question concerning the child's welfare exists. In the event a parent flees to Texas and seeks shelter in Texas, the other parent -- upon finding the parent and child in Texas -- has various options. The first is to report the commission of the crime and seek criminal prosecution. Such does not necessarily redeliver the child to the other parent however. The second option is to seek the Texas family court to grant a writ of habeas corpus and order the return of the child to the parent with the existing court order. The Texas court may exercise its discretion, however, and if a bona fide threat exists to the safety and welfare of the child, it may deny the writ of habeas corpus and enter appropriate orders pursuant to the UCCJEA as noted above. The orders entered pursuant to the UCCJEA are temporary in nature -- not more than ninety (90) days in duration -- and solely are intended to protect the child until such time as the home state court with continuing jurisdiction can act on the matter to protect the child. Simply put: Parents need to be extraordinarily careful in disobeying existing court orders. The downside not only includes punishment by the family court which entered the existing order which has been disobeyed, but may also include loss of visitation privileges, as well as a criminal prosecution. -- The Law Offices of Steven E. Rogers |