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May 26, 2014 by Robert Franklin, Esq.

Just a couple of months ago, I reported here on the complete refusal by police and sheriff’s departments, and district and county attorneys in Texas to enforce the criminal statute requiring compliance with visitation orders. The pertinent part of Texas Penal Code section 25.03 reads as follows:

Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. (a) 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;…

(d) An offense under this section is a state jail felony.

Strangely enough, an El Paso attorney subpoenaed several police officers to trial and all stated under oath that it’s the policy of the El Paso Police Department to treat custodial interference as “a civil matter.” Of course just one quick glance at the last line quoted above lets us all know that it is in fact not merely a civil matter, but a criminal one. Not only that, but it’s a felony requiring jail time.

So an enterprising investigative reporter for the El Paso Times started inquiring of the district attorneys’ offices of the major cities in the state what their policies are regarding Penal Code section 25.03. Reporter Bill Melugin found that none of them enforces the statute. District attorneys from Houston to Dallas to El Paso to Laredo and San Antonia simply ignore the law. To say the least, that police departments and district attorneys’ offices, whose job it is to enforce criminal law, are effectively nullifying section 25.03 is beyond outrageous.

We’re still awaiting results of Mr. Melugin’s continuing investigation, but it should make for exciting reading. I can’t wait to hear the excuses.

Apparently Texas isn’t the only place where the visitation rights of non-custodial parents, about 83% of whom are fathers, are blithely ignored by the authorities charged with enforcing them. Read about it here (Herald Scotland, 5/22/14).

It seems (surprise, surprise!) that no one’s doing much to help Scottish fathers see their kids once there’s a divorce or separation. Of course those fathers have been complaining about that for many years, but now they seem to have acquired an influential ally, Lady Elizabeth Butler-Sloss, the former President of the Family Division of the High Court of Justice in England and Wales. She holds the seldom-heard opinion that mothers who interfere with fathers’ parental rights should receive some sort of punishment for doing so.

I know it’s a novel concept, one that’s not only rarely heard, but in some places rejected outright by the very courts that issue the orders of visitation. As Australian historian John Hirst has pointed out, in that country, family courts long ago established the precedent of not enforcing the visitation rights of non-custodial parents. Astonishingly, family courts are the only ones that don’t enforce their orders and the only orders they don’t enforce are those for visitation. A more frank example of misandry in the judicial system would be hard to find.

And to her credit, Lady Butler-Sloss thinks that should be changed. Now, she stops short of calling for jail for miscreant custodial parents, but she does think that community service would be a good idea. Her reasoning, that’s hard to fault, is that mothers who deny fathers contact with their children shouldn’t go to jail, thereby taking them from their children, but should be made to, say, pick up trash by the highways all day and then be home for their kids at night.

Many observers will notice the sexism in her suggestion. After all, we don’t hesitate to imprison fathers who can’t pay their child support, so why shouldn’t the same rules apply to mothers who violate court orders? It’s a fair point of course, but I’d rather see the threat of prison removed from both parents rather than applied to both. Community service looks like a fair alternative both for parents who don’t pay and for those who don’t permit visitation.

"I can see no reason why she shouldn't do community service," she said. "I should like to see her penalised in all sorts of inconvenient ways as long as it doesn't have any impact on her care of the child.

"So long as the child is over five or goes to a child minder, then there is no reason why she shouldn't be required to go and clean the streets, whatever it may be. I would make her do something really unpleasant so she understands the consequences of this," the peer said.

Of course, there are plenty of other remedies, short of jail, a court could apply to custodial parents who don’t comply with their orders. Fines and court costs would be one as would be paying Dad’s attorney’s fees. Makeup time for what’s been denied would be another as would a complete change of custody.

Meanwhile, as yet no word on whether Lady Butler-Sloss practiced what she preaches. When she was on the bench, did she punish mothers who refused to obey her orders? Or is this more “don’t do as I do, do as I say?”

Whatever the case, it’s always good to hear an influential voice raised on behalf of treating fathers with at least a modicum of respect. Now if Scottish dads could get sheriffs to listen and act.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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