Physical Possession of Child
There are a number of ways to enforce a party’s right to physical possession of a child. Family Code section 105.001(c) provides for the attachment of a child on the filing of a verified pleading when it is clearly necessary to protect the child. The traditional remedy of habeas corpus is available under chapter 157 of the Family Code. Finally, a petition for the enforcement of a child custody determination under chapter 152 of the Family Code can include a request for the issuance of a warrant to take physical custody of a child. Because the burdens of proof and specific relief available vary, selecting the option to use requires careful consideration.
[Sections 36.2 through 36.10 are reserved for expansion.]
On the filing of a verified pleading or affidavit in accordance with the Texas Rules of Civil Procedure, the court may order attachment of a child. Tex. Fam. Code § 105.001(c). The court then issues a writ commanding any sheriff or constable to attach the body of the child and deliver the child to a designated place. The authority of the court to issue a writ of attachment is restricted by the territorial limits of the state in which the court is established. In re Aubin, 29 S.W.3d 199, 202 (Tex. App.—Beaumont 2000, orig. proceeding). Attachment is a harsh remedy that should be requested only when clearly necessary to protect the child. Specific facts, and not conclusions, must be alleged and verified or put in affidavit form.
Generally, attachment is ancillary to a suit in which the petitioner seeks additional relief providing for the care of a child in the future. For this reason, the attachment forms provided in this manual are designed for insertion within a petition. However, a separate motion to issue a writ of attachment may be filed ancillary to a pending action. A petitioner might file an original suit affecting the parent-child relationship and request attachment within a request for temporary and permanent managing conservatorship. When necessary, attachment may also be an ancillary remedy in habeas corpus, petitions to modify, and other actions.
[Sections 36.13 through 36.20 are reserved for expansion.]
Under chapter 157 of the Family Code, the writ of habeas corpus is used by the person with a legal right to possession of the child in an effort to regain possession from a person who wrongfully restrains the child.
Subject to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Parental Kidnapping Prevention Act (PKPA), if the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding shall compel return of the child to the relator only if it finds that the relator is presently entitled to possession under the order. Tex. Fam. Code § 157.372(a).
If the right to possession of a child is not governed by an order, the court in a habeas corpus proceeding shall compel return of the child to the parent if right of possession is between a parent and nonparent and a suit affecting the parent-child relationship has not been filed. If a suit affecting the parent-child relationship is pending and the parties have received notice of a hearing for temporary orders set for the same time as the habeas corpus proceeding, the court may either compel return of the child or issue temporary orders under Family Code chapter 105. Tex. Fam. Code § 157.376(a).
The court may not use a habeas corpus proceeding to adjudicate the right of possession between two parents or between two or more nonparents. Tex. Fam. Code § 157.376(b). It has been held that in the absence of specific provisions to the contrary in an order establishing conservatorship, the death of the managing conservator ends the conservatorship order, and it no longer constitutes a valid subsisting court order for purposes of seeking a writ for habeas corpus. Greene v. Schuble, 654 S.W.2d 436, 437–38 (Tex. 1983) (orig. proceeding); Lewis v. McCoy, 747 S.W.2d 48, 49–50 (Tex. App.—El Paso 1988, orig. proceeding). Family Code section 156.106, however, states that the death of a conservator is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing conservatorship or possession order, casting doubt on the reliability of these cases. See Tex. Fam. Code § 156.106. Further, under section 156.106(b), the court must consider any term or condition of the order or portion of a decree that denies possession of the child to a parent or imposes restrictions or limitations on the parent’s right to possession of or access to the child. Tex. Fam. Code § 156.106(b).
A petition for writ of habeas corpus may be filed in either the court of continuing, exclusive jurisdiction or a court with jurisdiction to issue a writ of habeas corpus in the county in which the child is found. Although habeas corpus is technically not a suit affecting the parent-child relationship, the court may refer to the provisions of Family Code title 5 for definitions and other procedures as appropriate. Tex. Fam. Code § 157.371.
§ 36.24Responses to Request for Writ of Habeas Corpus
If the court finds that the previous order on which the request for issuance of a writ is based was granted by a court that did not give the contestants reasonable notice of the proceeding and an opportunity to be heard, it may not render an order in the habeas corpus proceeding compelling return of the child on the basis of that order. Tex. Fam. Code § 157.372(b).
If the relator has by consent or acquiescence relinquished actual possession and control of the child for at least six months immediately before the filing of the petition for the writ, the court may either compel or refuse to order the return of the child. The court may disregard any brief periods of possession and control by the relator during the six-month period. If the court does not issue an order compelling the return of the child, it may issue temporary orders if a suit affecting the parent-child relationship is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding. Tex. Fam. Code § 157.373.
The court may order any appropriate temporary orders if there is a serious, immediate question concerning the welfare of the child, notwithstanding any other provision of subchapter H of chapter 157 of the Family Code. Tex. Fam. Code § 157.374. The court may also issue temporary orders if a suit affecting the parent-child relationship is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding. Tex. Fam. Code § 157.373(c). The provisions fail to address the possibility that the suit affecting the parent-child relationship and the habeas corpus proceeding may be pending in different counties or different courts.
If the petitioner intends to rely on an order of a Texas court, the attorney should obtain a certified copy of the order. Tex. R. Evid. 901(b)(7), 902, 1005. If a foreign order is being enforced, the attorney should obtain a certified, exemplified copy. See 28 U.S.C. § 1738.
§ 36.27Immunity from Civil Process
A relator coming to Texas for the sole purpose of compelling the return of a child through a habeas corpus proceeding is not amenable to civil process and is not subject to the jurisdiction of any civil court except the court in which the writ is pending. The relator is subject to process and jurisdiction in that court only for the purpose of prosecuting the writ. A relator’s request for costs, attorney’s fees, and necessary travel and other expenses under Family Code chapter 106 or 152 is not a waiver of this immunity to civil process. Tex. Fam. Code § 157.375.
A granting of habeas corpus is not appealable. Gray v. Rankin, 594 S.W.2d 409, 409 (Tex. 1980) (per curiam). Mandamus is the proper remedy to compel enforcement of a relator’s right in habeas corpus proceedings to custody of a child. See Saucier v. Pena, 559 S.W.2d 654, 655 (Tex. 1977) (orig. proceeding); Lamphere v. Chrisman, 554 S.W.2d 935, 938 (Tex. 1977) (orig. proceeding). See chapter 27 and form 27-1 in this manual.
[Sections 36.29 through 36.40 are reserved for expansion.]
IV. Warrant to Take Possession of Child
Subchapter D of chapter 152 of the Family Code provides the means for enforcement of interstate child custody determinations, within the context of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). However, many of the remedies under the UCCJEA, including the issuance of a warrant for physical possession of a child, are available in intrastate matters and should therefore be considered as well. The UCCJEA as contained in Family Code chapter 152 is state law, and provisions not clearly limited to interstate cases apply to intrastate cases as well.
COMMENT: Although Texas lawyers may be familiar with the habeas corpus procedure described above, the enforcement provisions in chapter 152 are superior in several ways, such as providing for the issuance of a warrant granting law enforcement officials the immediate right to take the child into their physical custody and to enter private property by way of forcible entry, at any hour, if necessary. See Tex. Fam. Code § 152.311. Further, chapter 152 allows for the awarding to the prevailing party of all necessary and reasonable expenses incurred by or on behalf of that party in enforcing the child custody determination, including but not limited to costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care expenses during the course of the proceeding. See Tex. Fam. Code § 152.312(a).
For purposes of enforcement under the UCCJEA, “petitioner” means a person seeking enforcement of a child custody determination or an order for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction. “Respondent” means a person against whom such a proceeding is brought. Tex. Fam. Code § 152.301. Therefore, under the UCCJEA, a court may enforce an order for the return of a child made under the Hague Convention as if it were a child custody determination. In re Lewin, 149 S.W.3d 727 (Tex. App.—Austin 2004, orig. proceeding).
Subchapter D of chapter 152 of the Family Code provides for the production of the child in a summary, remedial process based primarily on habeas corpus as a means of enforcement of a child custody determination from another state. A child custody determination made in another state or a foreign country under factual circumstances in substantial conformity with the jurisdiction standards of the UCCJEA must be recognized and enforced. In re Y.M.A., 111 S.W.3d 790 (Tex. App.—Fort Worth 2003, no pet.). Although this procedure is included in the UCCJEA, nothing statutorily limits its application to interstate cases. Its primary benefit over the habeas corpus proceeding found in chapter 157 is that the court’s inquiry is limited. See section 36.45 below.
A petition for expedited enforcement must be verified, and certified copies, or copies of certified copies, of all orders sought to be enforced, as well as any order confirming a registration under section 152.305, must be attached to the petition. Tex. Fam. Code § 152.308(a). The petition must also state—
1.whether the court that issued the determination to be enforced identified the jurisdictional basis on which it relied in exercising jurisdiction and, if so, what that basis was;
2.whether the determination to be enforced has been vacated, stayed, or modified by a court whose decision must be enforced and, if so, the identity of that court, the case number, and the nature of that proceeding;
3.whether any other proceeding has been commenced that could affect the current proceeding, including any proceeding related to domestic violence, protective orders, termination, or adoption, and, if such a proceeding has been commenced, the identity of the court, the case number, and the nature of that proceeding;
4.the current physical address of the child and the respondent, if known;
5.whether any other relief in addition to the immediate physical custody of the child and attorney’s fees is being requested and, if so, what is being requested (if assistance from a law enforcement agency is requested, it should be specifically included); and
6.if the child custody determination has been registered and confirmed under section 152.305, the date and place of registration.
Unless a warrant for the immediate return of the child is also issued, the petition, along with an order to appear, must be served by any means authorized by Texas law on the respondent and on any other person who has physical custody of the child. Tex. Fam. Code § 152.309.
On the filing of the petition, the court shall issue an order directing the respondent to appear in court, in person, either with or without the child, at a hearing. The court may also enter any other orders necessary to ensure the safety of the parties and the child. Tex. Fam. Code § 152.308(c).
The hearing must be held on the next judicial day after service of the order unless that date is impossible, in which case the court shall hold the hearing on the first judicial day possible. The court may extend the date of the hearing at the petitioner’s request. Tex. Fam. Code § 152.308(c). This priority is not found in the habeas corpus remedy.
The order must state the time and place of the hearing and inform the respondent that at the hearing the court will award the petitioner immediate physical custody of the child and order payment of any fees, costs, and expenses incurred by the petitioner and may schedule a hearing to determine if further relief is appropriate, unless the respondent appears as ordered and establishes that—
1.the child custody determination has not been registered and confirmed under Family Code section 152.305, and the issuing court did not have jurisdiction under the UCCJEA;
2.the child custody determination has not been registered and confirmed under section 152.305 and has been vacated, stayed, or modified by a court with appropriate jurisdiction under the UCCJEA;
3.the child custody determination has not been registered and confirmed under section 152.305, and the respondent, although entitled, never received notice in accordance with section 152.108 in the proceeding before the court that issued the order sought to be enforced; or
4.the child custody determination to be enforced has been registered and confirmed under section 152.305 but has been vacated, stayed, or modified by a court of a state with jurisdiction under the UCCJEA.
Unless the court issues a temporary emergency order under Family Code section 152.204, the court, after finding that the petitioner is entitled to immediate physical custody under the order sought to be enforced, shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that—
1.the child custody determination has not been registered and confirmed under section 152.305, and the issuing court did not have jurisdiction under the UCCJEA;
2.the child custody determination has not been registered and confirmed under section 152.305 and has been vacated, stayed, or modified by a court with appropriate jurisdiction under the UCCJEA;
3.the child custody determination has not been registered and confirmed under section 152.305, and the respondent, although entitled, never received notice in accordance with section 152.108 in the proceeding before the court that issued the order sought to be enforced; or
4.the child custody determination to be enforced has been registered and confirmed under section 152.305 but has been vacated, stayed, or modified by a court of a state with jurisdiction under the UCCJEA.
The court’s order shall also award fees, costs, and expenses. Tex. Fam. Code § 152.310(b). The prevailing party, including a state, shall be awarded necessary and reasonable expenses incurred by the party or on its behalf, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care expenses during the proceeding, unless the party from whom these amounts are sought establishes that such an award would be inappropriate. Tex. Fam. Code § 152.312(a).
The court may also grant additional relief, including a request for law enforcement assistance, and set a further hearing to determine whether additional relief is appropriate. Tex. Fam. Code § 152.310(b).
In these proceedings, if a party called to testify refuses to answer a question on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from that refusal. Tex. Fam. Code § 152.310(c). The privilege against the disclosure of communications between spouses and the defense of immunity based on a spousal or parent-child relationship may not be invoked in these proceedings. Tex. Fam. Code § 152.310(d).
§ 36.47Warrant for Physical Custody
On the filing of a petition seeking enforcement of a child custody determination, the petitioner may also file a verified application for the issuance of a warrant to take physical custody of the child. Tex. Fam. Code § 152.311(a). If the court, after hearing the testimony of the petitioner or another witness, finds that the child is imminently likely to suffer serious physical harm or be removed from Texas, it may issue a warrant to take physical custody of the child. The hearing on the underlying petition seeking enforcement must be held the next judicial day following execution of the warrant unless that date is impossible, in which case the court shall hold the hearing on the first judicial day possible. The application for the warrant must contain the statements required for the petition by Family Code section 152.308(b). Tex. Fam. Code § 152.311(b); see Tex. Fam. Code § 152.308(b). See section 36.43 above.
The warrant to take physical custody must recite all the facts on which the conclusion of imminent serious physical harm or removal from the jurisdiction is based. It should also direct the appropriate law enforcement officers to take physical custody of the child immediately, state the date for the hearing on the petition, provide for the safe interim placement of the child pending further order of the court, and impose conditions on placement of the child to ensure the appearance of the child and the child’s custodian. Tex. Fam. Code § 152.311(c).
Placement with the petitioner or any other appropriate placement authorized by law may be ordered. However, if the petition seeks to enforce a child custody determination made in a foreign country or an order for the return of the child made under the Hague Convention, the court may place a child with a parent or family member only if the parent or family member has significant ties to the jurisdiction of the court. Otherwise, the court shall provide for the delivery of the child to the Department of Family and Protective Services. Tex. Fam. Code § 152.311(c–1).
The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody. Tex. Fam. Code § 152.311(d).
A warrant to take physical custody of a child is enforceable throughout Texas. If the court, after hearing the testimony of the petitioner or another witness, finds that a less intrusive means is not available, the court may authorize law enforcement officers to enter private property to take physical custody of the child and, if necessary under the circumstances, to make a forcible entry at any hour. Tex. Fam. Code § 152.311(e).
An appeal may be taken from a final order under the UCCJEA enforcing a child custody determination in accordance with the rules for expedited appeals as in other civil cases. Tex. Fam. Code § 152.314. The Texas Supreme Court has held that justice demands a speedy resolution of child custody and child support issues. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam). The Family Code also recognizes that, in cases involving children, if ordinary scheduling practices will unreasonably affect the best interest of the children, the case should be given a preferential setting. See Tex. Fam. Code § 105.004. However, unless the court enters a temporary emergency order, the enforcing court may not stay an order enforcing a child custody determination pending appeal. Tex. Fam. Code § 152.314.
§ 36.49International Application
A Texas court must treat a foreign country as if it were a state of the United States in applying the general and jurisdictional provisions of the UCCJEA. A child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of the UCCJEA must be recognized and enforced under the enforcement provisions of the UCCJEA unless the child custody law of the foreign country violates fundamental principles of human rights. A record of all proceedings under the UCCJEA relating to a child custody determination made in a foreign country or to the enforcement of an order for the return of a child made under the Hague Convention must be made by a court reporter or as provided in Family Code section 201.009. Tex. Fam. Code § 152.105.
In a hearing held under Family Code chapter 152, it is a third-degree felony to knowingly make a false statement relating to a child custody determination made in a foreign country or to knowingly cause such a false statement to be made. Tex. Penal Code § 37.14.
[Chapters 37 through 39 are reserved for expansion.]