Tag Archives: custody

When Keeping Kids Is a Crime

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Hammack v. State, No. PD-0636-19, Tex. Crim. App. May 19, 2021. Judge Newell wrote for the 7-2 majority; Presiding Judge Keller and Judge Keel dissented.

Michael Anthony Hammack was convicted of the crime of interference with child custody and sentenced to five years’ probation. On appeal, he argued that the evidence was legally insufficient to convict him because there was no proof he knew the express terms of the order he was charged with violating. The Texarkana Court of Appeals affirmed the conviction, as did the Texas Court of Criminal Appeals.

Hammack was charged and convicted of interference with child custody. The Penal Code makes it a state jail felony to “take[] or retain[] a child younger than 18 years of age” if the person taking or retaining the child “knows that [doing so] violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.” Tex. Penal Code § 25.03(a)(1), (d).

I want to point out that neither the majority nor the dissent discussed the taking-or-retaining element in any depth. According to the majority’s recitation of the facts, Hammack’s daughter escaped CPS custody and went to her grandmother’s. Even if she wound up in Hammack’s physical custody, one could argue that he never took her from CPS’s custody. Was it sufficient that he “took” her from her grandmother’s? The court doesn’t say.

Instead, the appeal focused on Hammack’s knowledge of the express terms of the order he violated. Hammack did not challenge the existence of the order or that he violated it. He conceded that CPS had obtained an emergency order giving CPS temporary custody of his 16-year-old daughter. He also conceded that he violated that order by keeping the girl for about a week after she “escaped” CPS custody. (Among other things, he chased CPS out of his mother’s house, where the girl was staying, and took her to Oklahoma for a shotgun wedding to her 18-year-old boyfriend.)

Instead, Hammack challenged his conviction on the ground that he could not have known that keeping the girl for a week “violate[d] the express terms” of the order because he had not been formally (or informally) served with the order or told its express terms.

The majority concluded that he had been told the express terms and held that formal service of the order violated is not an element of the crime of interference with child custody. The statute only requires proof that the defendant knew his conduct violated the express terms of the order. While proof of service “may provide sufficient evidence of knowledge in a given case,” it is not necessary in every case. The State can also carry its burden with circumstantial evidence. In this case, the State presented evidence that Hammack was told about the order on three different occasions, including specifically the “express term” that gave CPS custody.

The dissent disagreed about whether he was told the express terms of the order. The dissent emphasized the distinction between being told that CPS had “custody” and being told that CPS had “sole custody.” Here, Hammack was told several times that CPS had been given “custody,” not “sole custody.” Without that key word (“sole”), the dissent would have determined that there was not sufficient evidence to support the conviction.

The majority took some pains to distinguish Tex. Penal Code § 25.07 and Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002). Section 25.07 criminalizes the violation of a list of “statutorily defined orders, each one having specific notice requirements, among them actual service, necessary to make each respective order ‘binding’.” Section 25.03, on the other hand, criminalizes the violation of custody orders, which may or may not require prior notice to be binding. For example, an ex parte CPS removal order is binding with or without service for up to 14 days. See Tex. Fam. Code § 262.102, 103.

In sum—formal service of the violated order is not an essential element of the crime of interference with child custody. Though the state must prove knowledge of the express terms of the order, it may do so through circumstantial evidence, such as testimony by a witness that she told the offender about the order in sufficient detail that he knew what its express terms required.

Scheming to Hide the Kids

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Sometimes in law, there are no winners. The 2018 case of Bos v. Smith, 556 S.W.3d 293 (Tex. 2018), is one of those cases. It contains a long and sordid tale, but the bottom line is that a father sued his former in-laws under Chapter 42 of the Family Code for aiding or assisting his ex-wife in blocking his visitation rights. The trial court awarded him $3 million “for mental anguish caused by [his in-laws’] interference with possessory rights” and $236,000 “for economic damages related to [his] legal defense.” Bos v. Smith, 492 S.W.3d 361, 374-75 (Tex. App.—Corpus Christi 2016), rev’d by Bos v. Smith, 556 S.W.3d 293 (Tex. 2018). The court of appeals affirmed the mental anguish damages but reversed on the economic damages. The Supreme Court reversed the whole thing and rendered judgment in the in-laws’ favor. To try to keep them straight, I’ll refer to the Court of Appeals’ opinion as “COA” and the Supreme Court’s opinion as “SCOTEX.”

The Story

Trisha and Craig were married in 2004. They divorced in 2008 with two young kids, both under 3 years old. Their divorce decree contained a standard possession order modified to address visitation before the kids’ third birthdays. Apparently, Trisha was “stingy” with visitation during the first year and eventually orchestrated a “scheme” to deprive Craig of visitation by coaching her kids to make unfounded accusations of sexual assault. SCOTEX, 556 S.W.3d at 297-99. “DFPS ultimately ruled out all sexual-abuse allegations,” and no charges were filed. SCOTEX, 556 S.W.3d at 298. But Trisha still refused to let Craig see the kids. On August 31, 2011, the trial court “held [Trisha] in contempt and imposed jail time for violating the standard possession order.” SCOTEX, 556 S.W.3d at 298. But, according to Craig’s attorney: “I walked out of this courtroom and I had not touched the button to go down the elevator when I was approached by the other lawyer saying, ‘We’ll sign a parental termination immediately’.” COA, 492 S.W.3d at 374 n.11. The trial court stayed the contempt order to allow time for Trisha to reconsider, but ultimately terminated her parental rights. SCOTEX, 556 S.W.3d at 298-99.

But that’s not the end of the story. Throughout this ordeal, Trisha’s parents had tried to help her with the kids. In fact, the first battle was fought when Trisha asked her mother to take the kids to a birthday party even though it was Craig’s turn to have them. SCOTEX, 556 S.W.3d at 297. Things got really bad really fast. DFPS (more commonly known as “CPS”) got involved, and Trisha’s parents agreed to stay with her and supervise her contact with the children as part of DFPS’s safety plan. But, according to the Supreme Court, they

quickly found their monitoring duties burdensome, and Grandfather began pressuring DFPS for a resolution. At one point, at his wit’s end with the situation, Grandfather told DFPS that (1) Mother was a “perfect” mother; (2) Father was a nut with poor parenting skills; and (3) Father used to abuse his daughters and would brainwash them.

SCOTEX, 556 S.W.3d at 298.

Craig was upset about his in-laws’ actions. After Trisha voluntarily terminated her rights, Craig sued his former in-laws under Chapter 42 of the Family Code for aiding and assisting her in blocking his visitation.

The Law

Chapter 42 of the Family Code says that a “person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.” Tex. Fam. Code § 42.002(a). The available damages include the actual costs and expenses incurred locating the child, recovering possession, and enforcing the possession order, as well as any mental anguish damages. Exemplary damages are available if the interfering person “acted with malice or with an intent to cause harm to the plaintiff.” Tex. Fam. Code § 42.006. And anybody who “aids or assists” the interfering person “is jointly and severally liable” with them if they either (1) had actual notice of the existence and contents of the possession order, or (2) had reasonable cause to believe that an order existed and that their actions “were likely to violate that order.” Tex. Fam. Code § 42.003(a).

The Supreme Court rendered judgment in favor of Trisha’s parents for two main reasons. First:

Chapter 42 does not cover mere schemes. Section 42.003 allows liability for assisting “in conduct for which a cause of action is authorized by this chapter,” and a cause of action is authorized for actually “tak[ing] or retain[ing]” possession of a child or “conceal[ing]” the child’s whereabouts, not for planning to do so.

SCOTEX, 556 S.W.3d at 301.

In other words, Trisha’s schemes weren’t enough, and merely taking sides is not enough. Chapter 42 requires specific action to prevent visitation.

Second, Craig proved “only one specific violation of the standard possession order—the two-hour birthday-party weekend.” SCOTEX, 556 S.W.3d at 301. But he did not prove that his former in-laws actually knew that it was his weekend or that they knew that their actions “were likely to violate” the order. SCOTEX, 556 S.W.3d at 301. He did not prove that they knew what the terms of the visitation order were (i.e., that it was his weekend). And, because the parties had done visitation by agreement for most of the time post-divorce and because of the onset of the DFPS investigation, Trisha’s parents may or may not have known that it was Craig’s weekend and that they should not have kept the kids that weekend.

Without proof of a specific, knowing violation of the possession order, Craig’s claim under Chapter 42 failed.