Texas District Attorneys Refuse to Enforce Criminal Law on Custody Interference

February 19, 2014 by Robert Franklin, Esq.

This is one of the best articles I’ve read in a long time on the obstacles non-custodial parents face (KFOX14, 2/3/14). In a nutshell, the State of Texas has a statute on its books that makes interference with child custody a felony. It’s Texas Penal Code section 25.03. But it turns out that, in all the state’s major cities at least, the law is simply never enforced. Yes, there are plenty of instances of custodial parents refusing to permit non-custodial parents to exercise their court-ordered visitation rights. And yes, that’s interference with child custody which is in turn a violation of section 25.03. So what do the law enforcement agencies of Houston, Dallas, San Antonio, Austin and El Paso do when they have evidence of custody interference by a custodial parent? Nothing.

El Paso, Texas reporter Bill Melugin got a tip from a family attorney named Mark T. Davis.

"I was in a trial downtown for a client of mine, a father, and he had many times told the police, ‘I can't get my children, this is a violation of the law, please do something about it,’ and he repeatedly was told that it’s a civil matter, not a criminal matter, You need to check with the court of continuing jurisdiction, get your private attorney,” Davis said. "Later on, I tried the case, and I subpoenaed those officers, and they confirmed what they had told him, it's the policy of the El Paso Police Department that they don't make arrests for the Texas penal code, interference with child custody, which is a felony."

Right away, you’ll notice a major discrepancy between the facts and the policy of the EPPD. It’s the policy of the EPPD to treat custodial interference as “a civil matter,” when Texas law clearly says it’s a criminal one, punishable by up to two years in prison. Of course it’s also a civil matter for the family courts, but, as the police and prosecutors well know, the one doesn’t preclude the other. Put simply, the police can enforce Penal Code section 25.03 if they want to. But they don’t.

Once Melugin started digging, he found that, what’s the policy of the EPPD is also the policy of the El Paso County Sheriff’s Office. And digging further, he found it’s the policy all over the state.

Davis sent open records requests to law enforcement in the five largest metropolitan cities in the state of Texas to find out if this was the case anywhere else. Documents requested included written policies on interference with child custody, and records of any arrests or charges as a result of it for the year 2012. All documents were provided to KFOX14. “The results are shocking to me,” Davis said. The El Paso Police Department provided a written policy stating that they will review every report dealing with Interference with Child Custody, and that they will be treated the same as any other criminal investigation. However, EPPD couldn’t produce records of any arrests for the crime. The El Paso County Sheriff Department and District Attorney Jaime Esparza’s office both have no written policy on penal code 25.03, and couldn’t produce records of anyone being arrested or charged for Interference with Child Custody. Emails dated July 2012 between an EPCSO commander and lieutenant, say that deputies were told by Esparza’s office that “they don’t waste their time with civil matters,” and that they feared administrative action if they referred any cases. The Houston Police Department gave a specific written policy that states “No charges will be present at D.A. intake,” and it instructs officers to refer complaining parties to civil court. Harris County District Attorney Devon Anderson didn’t respond to the open records request, and the Bexar County Sheriff, Adrian Garcia, indicated there have been no arrests under the law. San Antonio police did not provide any written policy against enforcement of Interference with Child Custody. They provided a list of incident reports for the law, but could not produce records of any actual arrests. The Bexar County Sheriff Department and District Attorney’s Office did not provide any records of anyone being arrested or charged under penal code 25.03. The Dallas Police Department could not provide any records of any arrests, and Dallas County Sheriff Lupe Valdez ignored the open records request. Dallas County District Attorney Craig Watkins said there was no policy on penal code 25.03. The Austin Police Department has no written policy against enforcement of Interference with Child Custody, but they didn’t make any arrests. The Travis County Sheriff Department indicated they had made five arrests, and the district attorney cited only two people in Travis County who had been charged. Austin was the only major city in Texas that had any record of anyone being charged for interference with child custody, both of which were actually filed in court. "For some reason, and I don't know the reason, it's the policy across the state of Texas to not enforce interference with child custody,” Davis said.

That’s about the size of it. The police hide behind the threadbare veil that interference with child custody is a civil matter alone when the Penal Code says in black and white that it’s also a criminal matter. El Paso County District Attorney Jaime Esparza was less than convincing in his interview with Melugin.

"It's generally a civil matter, but it can be criminal, as a result, if you just look at our numbers, we don't take very many of these cases, because they're family members and it's generally complex, and as a rule, they're civil matters, and there's a fine line between when does the civil conduct, the civil wrong, actually become criminal conduct?” Esparza said. "The reality is, they are complex crimes, they are family matters and the violations of the order generally are minor, theoretically technically a crime, but because the family court is dealing with the issue, we generally don't get involved."

It’s true that we wouldn’t want all cases of minor custodial interference treated as crimes. Esparza gave a hypothetical example of a child being returned an hour late to the custodial parent. Surely no one wants law enforcement resources used to prosecute fit, loving parents engaging in that sort of behavior. But of course many parents experience far worse.

Two fathers who spoke to KFOX14 said that policy kept them out of their kid’s lives as they grew up, despite court orders. "My problem I have is with my daughter Jasmine, when she was born, her mom decided to keep me away from her, up until she was 7,” said Javier Barraza, a father of three. "Every single time, 40 to 50 times, a year, I was denied visitation with my daughter, I fought that hard." Mark Krieger shared a similar problem with Barraza. "A couple of years ago, my wife filed for divorce. Shortly after that, she fled the home with my two youngest sons. Since that time, she's done her best to prevent me from seeing or spending time with them,” Krieger said. "I was ultimately granted final custody of all three children in the family, there's a court order granting that, and even with the court order she's done her best to prevent me from seeing my sons." Both men told KFOX14 they filed multiple police reports, but were always told the same thing. "I know it's illegal to interfere with the lawful custody of a child, and most officers will simply explain that it's a civil matter, they can't help it's beyond their jurisdiction, the most they can do is file a report,” Krieger said. "We'd call the cops, the cops showed up, and one of the times, the cop was there, she walked out and they said they can't do anything, even though I had the paperwork with me saying what the situation was, that it was my time. Nothing ever happened. They let her go,” Barraza said. The men feel they’ve been robbed of experiences they can never get back.

The pretense that Esparza and other DA’s use is that family courts have the power to enforce their own orders, so it’s not up to the police to do that for them. That dodge avoids at least three obvious things. First, for the police to arrest a parent for interfering with the other parent’s custody is not “enforcing a family court order;” it’s enforcing the criminal law. If the state legislature had wanted law enforcement to stay out of family court matters, it wouldn’t have passed Section 25.03 of the Penal Code. But it did pass it and it made it clear that the legislature wasn’t kidding around. That’s what making custodial interference a felony means. Felonies are serious business. But whatever the crime, district attorneys shouldn’t be in the business of nullifying the laws the legislature passes.

Second, Esparza and the other DAs should be aware that in fact, family courts seldom enforce their visitation orders. It’s perhaps the most common refrain among non-custodial fathers; custodial mothers keep children from fathers with all but complete impunity. It takes fathers many years and large sums of money to get a court to exercise its inherent power and force mothers to do what they’ve been ordered to do. The great majority of fathers don’t have the money to do that. So they can’t enforce the court’s order and the DA won’t do the job it’s tasked by the legislature with doing. That means fathers have nowhere to turn. They’ve got a court order saying they can see their kids that’s not worth the paper it’s written on.

Which brings me to my last point, that custodial parents have all sorts of governmental help when it comes to their parental rights, but non-custodial parents have essentially none. If custodial Mom isn’t receiving child support, she’s got the State Attorney General’s Office stocked with hundreds of lawyers who do nothing but enforce child support orders. The AG’s Office in turn is backed by hundreds of millions of dollars every year paid by the Office of Child Support Enforcement to do just that. Mom need only fill out a form and the massive gears of state and federal governments begin to turn in her favor.

But if custodial Mom decides to deny the children to non-custodial Dad, just let him try to get anyone to do anything for him. Good luck. He’ll find the onus is on him every step of the way. He gets no government-paid lawyer, he’s got to file the necessary documents himself or hire his own private attorney to do it for him. That’s money he likely doesn’t have. And even if he “wins,” it’s overwhelmingly probable that the judge won’t punish Mom’s bad behavior. No, he’s got to try and try and try again before getting any relief. By then, as Barraza and Krieger said, he’s “been robbed of experiences [he] can never get back.”

The great irony is that plenty of social science shows, and the Office of Child Support Enforcement admits, that non-custodial parents who have easy access to their kids are far more likely to pay the support they owe than are those who experience interference. The obvious lesson is that enforcing visitation is also enforcing child support. So you’d think government policy would be to let everyone know that violations of visitation orders would be treated as harshly as non-payment of child support. But government policy is the opposite. It treats visitation orders as child support’s poor relation.

Now we know that it’s not just in family court that that happens; law enforcement does the same and with the same result. Custodial parents know they’ll pay no price for refusing visitation, so they do exactly that at their whim. Let a few of them get carted off in a patrol car in handcuffs facing a felony rap and my guess is you’d see a change of behavior. After all, isn’t that what criminal law is supposed to be about – changing behavior?

But as is true throughout the legal world, fathers’ parental rights get little respect. The only thing we seem to be able to do is point accusing fingers at fathers with the word ‘deadbeat’ on our lips.

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