Bill Text: TX HB1207 | 2011-2012 | 82nd Legislature | Introduced
Bill Title: Relating to adoption of the Uniform Child Abduction Prevention Act.
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2011-04-29 - Referred to Jurisprudence [HB1207 Detail]
Download: Texas-2011-HB1207-Introduced.html
82R7225 KSD-F | ||
By: S. Davis of Harris | H.B. No. 1207 |
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relating to adoption of the Uniform Child Abduction Prevention Act. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subtitle B, Title 5, Family Code, is amended by | ||
adding Chapter 163 to read as follows: | ||
CHAPTER 163. UNIFORM CHILD ABDUCTION PREVENTION ACT | ||
Sec. 163.001. SHORT TITLE. This chapter may be cited as the | ||
Uniform Child Abduction Prevention Act. | ||
Sec. 163.002. DEFINITIONS. In this chapter: | ||
(1) "Abduction" means the wrongful removal of a child | ||
to another state or nation or the wrongful retention of a child in | ||
another state or nation. | ||
(2) "Child" means an unemancipated individual who is | ||
less than 18 years of age. | ||
(3) "Child custody determination" means a judgment, | ||
decree, or other order of a court providing for legal custody, | ||
physical custody, or visitation with respect to a child. The term | ||
includes a permanent, temporary, initial, and modification order. | ||
(4) "Child custody proceeding" means a proceeding in | ||
which legal custody, physical custody, or visitation with respect | ||
to a child is at issue. The term includes a proceeding for divorce, | ||
separation, neglect, abuse, dependency, guardianship, paternity, | ||
termination of parental rights, and protection from domestic | ||
violence. | ||
(5) "Court" means an entity authorized under the law | ||
of a state to establish, enforce, or modify a child custody | ||
determination. | ||
(6) "Petition" includes a motion or its equivalent. | ||
(7) "Record" means information that is inscribed on a | ||
tangible medium or that is stored in an electronic or other medium | ||
and is retrievable in perceivable form. | ||
(8) "State" means a state of the United States, the | ||
District of Columbia, Puerto Rico, the United States Virgin | ||
Islands, or any territory or insular possession subject to the | ||
jurisdiction of the United States. The term includes a federally | ||
recognized Indian tribe or nation. | ||
(9) "Travel document" means a record relating to a | ||
travel itinerary, including a pass and a reservation for | ||
transportation and accommodations. The term does not include a | ||
passport or international visa. | ||
(10) "Wrongful removal" means the taking of a child | ||
that breaches a right of custody or visitation given or recognized | ||
under the law of this state. | ||
(11) "Wrongful retention" means the keeping or | ||
concealing of a child that breaches a right of custody or visitation | ||
provided or recognized under the law of this state. | ||
Sec. 163.003. COOPERATION AND COMMUNICATION AMONG COURTS. | ||
Sections 152.110, 152.111, and 152.112 apply to a proceeding under | ||
this chapter. | ||
Sec. 163.004. ACTIONS FOR ABDUCTION PREVENTION MEASURES. | ||
(a) A court on its own motion may order abduction prevention | ||
measures in a child custody proceeding if the court finds that the | ||
evidence establishes a credible risk of abduction of the child. | ||
(b) A party to a child custody determination or an | ||
individual or entity having a right under state law to seek a child | ||
custody determination for the child may file a petition seeking | ||
abduction prevention measures to protect the child under this | ||
chapter. | ||
(c) An individual or entity entitled to bring an action | ||
under Subsection (b) may file a petition seeking abduction | ||
prevention measures with respect to a child who is not yet the | ||
subject of a child custody determination. | ||
(d) A prosecutor or public authority designated under | ||
Section 152.315 may petition for a warrant to take physical custody | ||
of a child under Section 163.009. | ||
Sec. 163.005. JURISDICTION. (a) A petition under this | ||
chapter may be filed only in a court that has jurisdiction to make a | ||
child custody determination with respect to the child at issue | ||
under Chapter 152. | ||
(b) A court of this state has temporary emergency | ||
jurisdiction under Section 152.204 if the court finds a credible | ||
risk of abduction. | ||
Sec. 163.006. CONTENTS OF PETITION. A petition for | ||
abduction prevention measures must: | ||
(1) be verified; | ||
(2) include a copy of an existing child custody | ||
determination, if any, and if available; | ||
(3) specify the risk factors for abduction, including | ||
the relevant factors described by Section 163.007; and | ||
(4) subject to Section 152.209(e), if reasonably | ||
ascertainable, contain: | ||
(A) the name, birth date, and gender of the child | ||
at risk for abduction; | ||
(B) the customary address and current physical | ||
location of the child; | ||
(C) the identity, customary address, and current | ||
physical location of the respondent; | ||
(D) a statement of whether a prior action to | ||
prevent abduction or domestic violence has been filed by a party or | ||
other individual or entity having custody of the child, and the | ||
date, location, and disposition of such an action; | ||
(E) a statement of whether either party to the | ||
action has been arrested for a crime related to family violence or | ||
child abuse, and the date, location, and disposition of such a case; | ||
and | ||
(F) any other information required to be | ||
submitted to the court for a child custody determination under | ||
Section 152.209. | ||
Sec. 163.007. FACTORS TO DETERMINE RISK OF ABDUCTION. (a) | ||
In determining whether there is a credible risk of abduction of a | ||
child, the court shall consider evidence that the respondent or the | ||
petitioner: | ||
(1) has previously abducted or attempted to abduct the | ||
child; | ||
(2) has threatened to abduct the child; | ||
(3) has recently engaged in activities, other than | ||
planning activities related to carrying out a safety plan to flee | ||
from family violence, that may indicate a planned abduction, | ||
including: | ||
(A) abandoning employment; | ||
(B) selling a primary residence or terminating a | ||
lease; | ||
(C) closing bank or other financial management | ||
accounts, liquidating assets, hiding or destroying financial | ||
documents, or conducting any other unusual financial activities; | ||
(D) applying for a passport or visa, obtaining | ||
travel documents, or purchasing travel tickets for the respondent, | ||
another family member, or the child; or | ||
(E) seeking to obtain the child's birth | ||
certificate or school or medical records; | ||
(4) has engaged in family violence, stalking, or child | ||
abuse or neglect; | ||
(5) has failed or refused to follow a child custody | ||
determination; | ||
(6) lacks strong familial, financial, emotional, or | ||
cultural ties to the state or the United States, regardless of | ||
whether the other parent is a citizen or permanent resident of the | ||
United States; | ||
(7) has strong familial, financial, emotional, or | ||
cultural ties to another state or country and is likely to take the | ||
child to that country, particularly a country that: | ||
(A) is not a party to the Hague Convention on the | ||
Civil Aspects of International Child Abduction and does not provide | ||
for the extradition of an abducting parent or for the return of an | ||
abducted child; | ||
(B) is a party to the Hague Convention on the | ||
Civil Aspects of International Child Abduction but: | ||
(i) the Hague Convention on the Civil | ||
Aspects of International Child Abduction is not in force between | ||
the United States and that country; | ||
(ii) is noncompliant according to the most | ||
recent compliance report issued by the United States Department of | ||
State; or | ||
(iii) lacks legal mechanisms for | ||
immediately and effectively enforcing a return order under the | ||
Hague Convention on the Civil Aspects of International Child | ||
Abduction; | ||
(C) poses a risk that the child's physical or | ||
emotional health or safety would be endangered in the country | ||
because of specific circumstances relating to the child or because | ||
of human rights violations committed against children; | ||
(D) has laws or practices that would: | ||
(i) enable the respondent, without due | ||
cause, to prevent the petitioner from contacting the child; | ||
(ii) restrict the petitioner from freely | ||
traveling to or exiting from the country because of the | ||
petitioner's gender, nationality, marital status, or religion; or | ||
(iii) restrict the child's ability legally | ||
to leave the country after the child reaches the age of majority | ||
because of a child's gender, nationality, or religion; | ||
(E) is included by the United States Department | ||
of State on a current list of state sponsors of terrorism; | ||
(F) does not have an official United States | ||
diplomatic presence in the country; or | ||
(G) is engaged in active military action or war, | ||
including a civil war, to which the child may be exposed; | ||
(8) is undergoing a change in immigration or | ||
citizenship status that would adversely affect the respondent's | ||
ability to remain in the United States legally; | ||
(9) has had an application for United States | ||
citizenship denied; | ||
(10) has forged or presented misleading or false | ||
evidence on government forms or supporting documents to obtain or | ||
attempt to obtain a passport, a visa, travel documents, a social | ||
security card, a driver's license, or another government-issued | ||
identification card or has made a misrepresentation to the United | ||
States government; | ||
(11) has used multiple names to attempt to mislead or | ||
defraud; or | ||
(12) has engaged in any other conduct the court | ||
considers relevant to the risk of abduction. | ||
(b) In the hearing on a petition for abduction prevention | ||
measures, the court shall consider: | ||
(1) evidence that the respondent believed in good | ||
faith that the respondent's conduct was necessary to avoid imminent | ||
harm to the child or respondent; and | ||
(2) any other evidence that may be relevant to whether | ||
the respondent may be permitted to remove or retain the child. | ||
Sec. 163.008. PROVISIONS AND MEASURES TO PREVENT ABDUCTION. | ||
(a) If a petition has been filed under this chapter, the court may | ||
enter an order that includes: | ||
(1) the basis for the court's exercise of | ||
jurisdiction; | ||
(2) the manner in which notice and opportunity to be | ||
heard were given to the persons entitled to notice of the proceeding | ||
under the Texas Rules of Civil Procedure; | ||
(3) a detailed description of each parent's custody | ||
and visitation rights and residential arrangements for the child; | ||
(4) a provision stating that a violation of the order | ||
may subject the party in violation to civil and criminal penalties; | ||
and | ||
(5) identification of the child's country of habitual | ||
residence at the time of the issuance of the order. | ||
(b) If after reviewing the evidence, at a hearing on a | ||
petition under this chapter or on the court's own motion, the court | ||
finds a credible risk of abduction of the child, the court shall | ||
enter an abduction prevention order. The order must include the | ||
provisions described in Subsection (a) and the measures and | ||
conditions, including those described in Subsections (c), (d), and | ||
(e), that are reasonably calculated to prevent abduction of the | ||
child, giving due consideration to the custody and visitation | ||
rights of both parents. In determining the measures to be ordered, | ||
the court shall consider: | ||
(1) the age of the child; | ||
(2) the potential harm to the child from an abduction; | ||
(3) the legal and practical difficulties of returning | ||
the child to the jurisdiction if abducted; and | ||
(4) the reasons for the potential abduction, including | ||
evidence of domestic violence or child abuse. | ||
(c) An abduction prevention order may include one or more of | ||
the following: | ||
(1) the imposition of travel restrictions that require | ||
that a party traveling with the child outside a designated | ||
geographical area provide the other party with the following: | ||
(A) the travel itinerary of the child; | ||
(B) a list of physical addresses and telephone | ||
numbers at which the child can be reached at specified times; and | ||
(C) copies of all travel documents; | ||
(2) a prohibition against the respondent directly or | ||
indirectly: | ||
(A) removing the child from this state, the | ||
United States, or another geographic area without permission of the | ||
court or the petitioner's written consent; | ||
(B) removing or retaining the child in violation | ||
of the child custody determination; | ||
(C) removing the child from school or a | ||
child-care or similar facility; or | ||
(D) approaching the child at any location other | ||
than a site designated for supervised visitation; | ||
(3) requiring a party to register the order in another | ||
state as a prerequisite to allowing the child to travel to that | ||
state; | ||
(4) with regard to the child's passport: | ||
(A) directing the petitioner to place the child's | ||
name in the United States Department of State's Children's Passport | ||
Issuance Alert Program (CPIAP); | ||
(B) requiring the respondent to surrender to the | ||
court or the petitioner's attorney any United States or foreign | ||
passport issued in the child's name, including a passport issued in | ||
the name of both the respondent and the child; and | ||
(C) prohibiting the respondent from applying on | ||
behalf of the child for a new or replacement passport or visa; | ||
(5) as a prerequisite to exercising custody or | ||
visitation, requiring the respondent to provide: | ||
(A) to the United States Department of State | ||
Office of Children's Issues and the relevant foreign consulate or | ||
embassy an authenticated copy of a court order detailing passport | ||
and travel restrictions for the child; | ||
(B) to the court: | ||
(i) proof that the respondent has provided | ||
the information in Paragraph (A); and | ||
(ii) an acknowledgment in a record from the | ||
relevant foreign consulate or embassy that no passport application | ||
has been made, or passport issued, on behalf of the child; | ||
(C) to the petitioner, proof of registration with | ||
the United States embassy or other United States diplomatic | ||
presence in the destination country, and with the Central Authority | ||
for the Hague Convention on the Civil Aspects of International | ||
Child Abduction, if that convention is in effect between the United | ||
States and the destination country, unless one of the parents | ||
objects; and | ||
(D) a written waiver under the federal Privacy | ||
Act of 1974 (5 U.S.C. Section 552a), with respect to any document, | ||
application, or other information pertaining to the child | ||
authorizing disclosure of them to the court and the petitioner; and | ||
(6) on the petitioner's request, a requirement that | ||
the respondent obtain an order from the relevant foreign country | ||
containing terms identical to the child custody determination | ||
issued in the United States. | ||
(d) In an abduction prevention order, the court may impose | ||
conditions on the exercise of custody or visitation that: | ||
(1) limit visitation or require that visitation with | ||
the child by the respondent be supervised until the court finds that | ||
supervision is no longer necessary and order the respondent to pay | ||
for the supervision; | ||
(2) require the respondent to post a bond or provide | ||
other security in an amount sufficient to serve as a financial | ||
deterrent to abduction, the proceeds of which may be used to pay for | ||
the expenses of recovery of the child, including attorney's fees | ||
and actual costs if there is an abduction; and | ||
(3) require the respondent to obtain education on the | ||
potentially harmful effects to the child from abduction. | ||
(e) To prevent imminent abduction of a child, a court may: | ||
(1) issue a warrant to take physical custody of the | ||
child under Section 163.009 or other law of this state; | ||
(2) direct the use of law enforcement to take any | ||
action reasonably necessary to locate the child, obtain return of | ||
the child, or enforce a custody determination under this chapter or | ||
other law of this state; and | ||
(3) grant any other relief allowed under other law of | ||
this state. | ||
(f) The remedies provided in this chapter are cumulative and | ||
do not affect the availability of other state remedies to prevent | ||
child abduction. | ||
Sec. 163.009. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD. | ||
(a) If a petition under this chapter contains allegations, and the | ||
court finds that there is a credible risk that the child is | ||
imminently likely to be wrongfully removed, the court may issue an | ||
ex parte warrant to take physical custody of the child. | ||
(b) The respondent on a petition under Subsection (a) must | ||
be afforded an opportunity to be heard at the earliest possible time | ||
after the ex parte warrant is executed, but not later than the next | ||
judicial day unless that date is impossible. In that event, the | ||
court shall hold the hearing on the first judicial day possible. | ||
(c) An ex parte warrant to take physical custody of a child | ||
must: | ||
(1) recite the facts on which a determination of a | ||
credible risk of imminent wrongful removal of the child is based; | ||
(2) direct law enforcement officers to take physical | ||
custody of the child immediately; | ||
(3) state the date for the hearing on the petition; and | ||
(4) provide for the safe interim placement of the | ||
child pending further order of the court. | ||
(d) If feasible, before issuing a warrant and determining | ||
the placement of the child after the warrant is executed, the court | ||
may order a search of the relevant databases of the National Crime | ||
Information Center system, including those pertaining to | ||
protection orders, historical protection orders, warrants, sex | ||
offender registries, and persons on supervised release, and similar | ||
state databases to determine if either the petitioner or the | ||
respondent has a history of family violence or child abuse. | ||
(e) The respondent must be served with the petition and | ||
warrant when, or immediately after, the child is taken into | ||
physical custody. | ||
(f) A warrant to take physical custody of a child, issued by | ||
this state or another state, is enforceable throughout this state. | ||
If the court finds that a less intrusive remedy will not be | ||
effective, it may authorize law enforcement officers to enter | ||
private property to take physical custody of the child. If required | ||
by exigent circumstances, the court may authorize law enforcement | ||
officers to make a forcible entry at any hour. | ||
(g) If the court finds, after hearing, that a petitioner | ||
sought an ex parte warrant under Subsection (a) for the purpose of | ||
harassment or in bad faith, the court may award the respondent | ||
reasonable attorney's fees, expenses, and costs. | ||
(h) This chapter does not affect the availability of relief | ||
allowed under other law of this state. | ||
Sec. 163.010. DURATION OF ABDUCTION PREVENTION ORDER. An | ||
abduction prevention order remains in effect until the earliest of: | ||
(1) a time stated in the order; | ||
(2) the date the child is emancipated; | ||
(3) the date of the child's 18th birthday; or | ||
(4) the date the order is modified, revoked, vacated, | ||
or superseded by a court with jurisdiction under Sections 152.201 | ||
through 152.203. | ||
Sec. 163.011. UNIFORMITY OF APPLICATION AND CONSTRUCTION. | ||
In applying and construing this chapter, consideration must be | ||
given to the need to promote uniformity of the law with respect to | ||
its subject matter among states that enact it. | ||
Sec. 163.012. RELATION TO FEDERAL ELECTRONIC SIGNATURES IN | ||
GLOBAL AND NATIONAL COMMERCE ACT. This chapter modifies, limits, | ||
and supersedes the federal Electronic Signatures in Global and | ||
National Commerce Act (15 U.S.C. Section 7001 et seq.) but does not | ||
modify, limit, or supersede Section 101(c) of that Act or authorize | ||
electronic delivery of any of the notices described in Section | ||
103(b) of that Act. | ||
SECTION 2. Subchapter I, Chapter 153, Family Code, is | ||
repealed. | ||
SECTION 3. The changes in law made by this Act apply to a | ||
suit affecting the parent-child relationship pending in a trial | ||
court on the effective date of this Act or filed on or after that | ||
date. | ||
SECTION 4. This Act takes effect September 1, 2011. |