In Texas, there are various family law cases that concern a parent’s rights and responsibilities regarding the care, custody, and control of a child. Throughout the United States, the concept of child custody is represented by various terms. In Texas, custody issues are technically referred to as conservatorship. This article uses the terms custody and conservatorship interchangeably.
In Texas, orders regarding the rights and duties of conservators create legal obligations that can lead to severe consequences if violated. The violation of a court order concerning child conservatorship can be the basis of the following legal actions:
- A writ of habeas corpus for the return of the child
- A charge of contempt of court for violating the court’s orders
- Criminal liability for the crime of parental kidnapping
- Civil liability for the tort of interference with a parent’s possessory rights
Writ of Habeas Corpus
In Medieval Latin, habeas corpus roughly translates to have the body and refers to a court order to have a person brought before the court. In criminal law, writs of habeas corpus are used to litigate claims of unlawful detention or imprisonment.
In the context of child custody, a writ of habeas corpus is an order to return a child to the party who is legally entitled to possession of the child when a valid court order governs who has the superior right to possession of the child.
Additionally, the court can issue a temporary order in cases involving serious and immediate questions concerning a child’s welfare. Courts have interpreted the phrase serious immediate question to mean an imminent risk to the physical or emotional safety of a child that warrants emergency action to preserve the child’s wellbeing.
Contempt of Court
A Texas court may also enforce conservatorship orders by holding the violator in contempt. Courts can also use their contempt power to enforce child support obligations. The court’s contempt power is also a means for ensuring decorum and respect for the court’s authority.
A party seeking enforcement of a conservatorship order must prove that the other party violated specific and unambiguous terms of the order. The order must be clear, specific, and unequivocal; otherwise, a party bound by the order may misinterpret what they are required to do to comply with the order. If an order has ambiguous terms, the court may not hold the alleged noncomplying party in contempt.
To be enforceable by contempt proceedings, a conservatorship order must generally be specific as to:
- Dates and times
- Geographic locations
- Identities of the parties and children
- Prohibited activities (such as traveling outside of a specific geographic area)
A court may hold a party in contempt of violating an order for conservatorship if they try to interfere with the other party’s ability to exercise their rights as a conservator. For example, if a parent denies a possessory conservator visitation rights, they may be held in contempt for violating the possessory conservator’s rights pursuant to the court’s order.
However, a parent who involuntarily fails to comply with a conservatorship order may not be held in contempt as a result. Courts have held that a parent is not subject to contempt of court in cases where their ability to comply was actively discouraged or obstructed by the other parent; some Courts will not make a finding of contempt if a parent passively fails to insist that a child comply with visitation, but some Courts take a stronger position in those circumstances.
Texas law prohibits certain acts that may involve the violation of a court order for child custody. Texas Penal Code § 25.03 recognizes interference with child custody as a criminal offense punishable as a state jail felony.
A person is guilty of interference with child custody if they take or retain a minor child:
- “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;
- 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
- 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.”
A parent may also file a lawsuit for monetary damages for liability for interference with a possessory right. Under Texas Family Code § 42.002, “A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.”
The Texas Family Code provides that the violation of a possessory right involves “the taking, retention, or concealment of a child at a time when another person is entitled to possession of or access to the child,” which includes orders for conservatorship, possession, or access to a child.
For Quality Legal Advice, Turn to Coker, Robb & Cannon
Court orders regarding a parent’s rights as a conservator or for visitation are important enough to warrant significant legal consequences if disobeyed. If your case involves issues regarding the noncompliance of such orders, you should seek legal counsel from one of our experienced attorneys at Coker, Robb & Cannon, Family Lawyers.