Bill Text: TX HB1207 | 2011-2012 | 82nd Legislature | Introduced

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Bill Title: Relating to adoption of the Uniform Child Abduction Prevention Act.

Sponsorship: Bipartisan Bill

Status: (Engrossed - Dead) 2011-04-29 - Referred to Jurisprudence [HB1207 Detail]

Download: Texas-2011-HB1207-Introduced.html

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82R7225 KSD-F
By: S. Davis of Harris H.B. No. 1207

A BILL TO BE ENTITLED
AN ACT
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.