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Civil Liability Against Interfering with Child Custody

The Family Code directs 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 to that person.  A possessory right is violated by the taking, retention, or concealment of a child at a time when another person is entitled to possession of or access to the child.  Additionally, a person who aids or assists in conduct for which a suit is authorized under this provision of the Family Code is jointly and severally liable for damages. In order for a third party to be held liable, i.e., a person who was not a party to the suit in which an order was rendered providing the possessory right it must be shown that that person had actual notice of the existence and contents of the order or had reasonable cause to believe that the child was the subject of an order and that the person’s action were likely to violate the order.

A suit under this section of the Family Code may be filed in the county where the plaintiff resides, where the defendant resides, or in a court that has continuing, exclusive jurisdiction of the child.

Damages may include the actual costs and expenses incurred, including attorney’s fees; expenses for locating a child who is the subject of the order; expenses incurred for recovering possession of the child if the petitioner is entitled to possession; and costs incurred for enforcing the order and prosecuting the suit.  Additionally, the plaintiff may be entitled to damages for mental suffering and anguish incurred by the plaintiff because of a violation of the order, and if the person liable for damages acted with malice or with an intent to cause harm, the plaintiff may be entitled to recover exemplary (punitive) damages.

A person sued for damages as provided by this chapter is entitled to recover attorney’s fees and court costs if the claim for damages is dismissed or judgment is awarded to the defendant; and the court or jury finds that the claim for damages is frivolous, unreasonable, or without foundation.