A concerned woman gazes out the window, appearing to await the return of her child after a visitation period.

When a child is not returned after a scheduled visitation in Texas, it can be a distressing and legally complex situation for any parent. Understanding the range of legal remedies available is crucial in these circumstances. This article explores the various legal actions that can be taken, including filing a writ of habeas corpus, seeking enforcement of custody orders, petitioning for modifications to existing orders, and the importance of thorough documentation. Each of these remedies offers a pathway to resolving the issue and ensuring the child’s safety and well-being.

Habeas Corpus in Child Custody Cases:

Habeas corpus is a significant legal tool in Texas for addressing immediate concerns about the possession of a child.

  • Understanding Habeas Corpus: This legal action is used to determine which parent has the immediate right to possession of the child, especially crucial in disputes or non-compliance with custody arrangements.
  • Legal Standards in Habeas Corpus Proceedings: The burden of proof is stringent. As stated in In re Hinojosa: “In a habeas corpus proceeding, the applicant has the burden of proving his or her right to immediate possession of the child by clear and convincing evidence.” (In re Hinojosa, 34 S.W.3d 743 (Tex. App.—Corpus Christi 2000, no pet.))
  • Focus of Habeas Corpus in Custody Disputes: The proceedings are not about long-term custody decisions but rather who has the legal right to the child at that moment. In re Z.L.T. clarifies: “The habeas corpus court is not to resolve the issue of who should ultimately have the right to determine the child’s primary residence but only who has the immediate right to possession of the child.” (In re Z.L.T., 124 S.W.3d 163 (Tex. App.—Houston [14th Dist.] 2003, no pet.))
  • Use of Writs of Attachment: In some cases, a writ of attachment may accompany a habeas corpus action, used only when there is a clear and specific need, as noted in In re V.L.K.: “A writ of attachment is an extraordinary remedy and should only be used when there is a clear and specific showing of need.” (In re V.L.K., 24 S.W.3d 338 (Tex. 2000))

Enforcement of Custody Orders:

Enforcing custody orders is a critical remedy when a child is not returned after visitation.

  • Legal Action for Enforcement: Parents have the right to seek enforcement of custody orders through the courts. Texas Family Code § 157.001 provides the legal basis for this, stating: “A person entitled to possession of or access to a child under a court order may file a suit to enforce the order if the person against whom the order is sought to be enforced has violated the order by failing to comply with its terms.” (Texas Family Code § 157.001)
  • Role of the Court and Law Enforcement: The court plays a pivotal role in enforcing custody orders, focusing on the best interest of the child. In cases where there is a concern for the child’s safety or a violation of custody orders, law enforcement may become involved. The Texas Penal Code § 25.03 addresses interference with child custody, stating: “A person commits an offense if the person takes or retains a child younger than 18 years of age: (1) 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.” (Texas Penal Code § 25.03) This involvement of law enforcement underscores the seriousness of custody order violations and the legal consequences that may follow.

Modifications to Custody Orders:

When visitation issues are recurrent, seeking a modification to the custody order may be necessary to address the changing needs of the child and family.

  • Petitioning for Modification: Parents have the right to request the court to modify the existing custody order. The Texas Family Code § 156.101 states: “The court may modify an order that provides for the appointment of a conservator, the allocation of parental rights and duties, the support of a child, or the possession of and access to a child if the modification would be in the best interest of the child and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.” (Texas Family Code § 156.101) This provision allows for modifications in visitation schedules or custody arrangements to better suit the current situation and the child’s best interests.
  • Considerations for Modification: In determining modifications, the court prioritizes the child’s welfare. As noted in In re C.C.J., the court considers “the circumstances of the child or a conservator that have materially and substantially changed since the rendition of the original order.” (In re C.C.J., 244 S.W.3d 911 (Tex. App.—Fort Worth 2008, no pet.)) The court evaluates the history of compliance or non-compliance with the custody order and any significant changes in the parents’ circumstances.

Documenting Incidents for Legal Proceedings:

Proper documentation is crucial in child custody and visitation disputes, especially for enforcement, habeas corpus proceedings, and modifications. While there are numerous relevant sections in the Texas Family Code and Texas Rules of Evidence, here are key examples:

  • Factors Considered by the Court: There are many relevant sections in the Texas Family Code regarding factors the court considers. One such example is § 153.004, which states: “The court shall consider evidence of the intentional use of abusive physical force by a party against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.” (Texas Family Code § 153.004) Documenting incidents that align with these considerations is vital.
  • Documentation for Habeas Corpus and Modifications: Among various sections that address modifications, Texas Family Code § 156.101 is particularly pertinent. It notes: “The court may modify an order that provides for the appointment of a conservator, the allocation of parental rights and duties, the support of a child, or the possession of and access to a child if the modification would be in the best interest of the child and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.” (Texas Family Code § 156.101) Documentation demonstrating such changes is crucial.
  • Admissibility of Documentation: In the realm of evidence admissibility, one relevant rule is the Texas Rules of Evidence, Rule 803(6). This rule states: “A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by — or from information transmitted by — someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity.” (Texas Rules of Evidence, Rule 803(6)) This highlights the importance of systematic record-keeping in legal proceedings related to custody and visitation.

Dealing with a non-custodial parent who fails to return a child after visitation can be challenging. However, Texas law provides several legal remedies to address this issue. It’s essential to act in accordance with the law, document all incidents, and seek legal advice to ensure the safety and well-being of your child.

To retain an experienced Texas divorce lawyer for your divorce or child custody case in Dallas, Denton, Collin or Rockwall County, please schedule a consultation with us today.