November-December 2018

Resolving Interference with Child Custody (ICC) cases

David Willborn

County & District Attorney in Guadalupe County

This summer, I attended a meeting regarding Penal Code §25.03 (Interference with Child Custody) in which TDCAA Executive Director Rob Kepple, representatives of several prosecutors’ and legislators’ offices, and a number of aggrieved parents who had been deprived of seeing their children for long periods of time were in attendance.

Many of these parents’ stories were extreme, and all were heart-wrenching. Although the vast majority of child custody disputes are naturally resolved in the family courts, we heard about a number of situations that seemed extraordinary and reasonably called for some attention by law enforcement. Once law enforcement gets involved, you will at some point be involved as well.
    During the meeting, representatives from different prosecutors’ offices discussed various strategies for successful resolution to these types of cases. The exchange of ideas that day led to my writing this article, and we in Guadalupe County hope that our experience will aid in reaching a positive resolution in cases that come before us.
    Our method of dealing with potential ICC cases stems from our belief that justice does not require us to make felons out of co-parents who are having a temporary, non-violent dispute regarding children. It is often difficult for us to square the punishment level of an ICC case against other cases with more egregious facts but the same (or lower) punishment range. Our primary goal is to be sure that children get to see and interact with both parents in every situation where that is appropriate; it is the right thing to do and is proven to be the healthiest mode of living for children. With that said, we have been incredibly successful in resolving these cases in Guadalupe County with minimal judicial intervention. The following is a summary of how we handle them.
    In Guadalupe County, all ICC cases originate from law enforcement agencies, as we do not accept direct filings in our office. While not a hard-and-fast rule, we ask that law enforcement not forward a case to us until more than one complaint is made. The “one-time” cases tend to come in sporadically (usually around holidays, the beginning and end of summer, or spring break) so, of the many reports that are made in our county, only a couple dozen require prosecutorial review annually.  
    As soon as we get a case from an agency, a prosecutor reviews it to determine if the person is actually in violation of a valid court order or decree. We require law enforcement to include the court order that was valid at the time of the incident with the case submission. If it is clear that a violation has taken place, we make telephone contact with the complainant (usually the non-custodial parent) to determine whether the incident is an ongoing problem or whether it was a temporary flare-up that has resolved itself. If it seems to us that the situation is a flare-up, we decline the case, send it back to the agency with a request that they retain the records of the incident, and ask the agency to immediately return it to us if another incident occurs within a calendar year.
    If, however, the problem is regular and/or ongoing, we send a target letter to the parent who is in violation, informing him or her how s/he is violating the order. In that letter, we caution that, if s/he continues to violate the order, we will proceed with an ICC case. We include a verbatim copy of the relevant statute so that the violator knows precisely what conduct is prohibited and what the consequences of such conduct may be. A copy of that letter is also sent to the complainant and to the originating law enforcement agency, and we inform both that they should immediately contact our office if another offense takes place so that we can move forward with prosecution. Additionally, if the civil case between the parents is currently pending, we don’t necessarily decline to prosecute the case as a matter of course. We will generally attempt to contact the attorney representing the violator to inform him or her and help straighten things out. It is relevant to note that since the inception of this policy, 85 to 90 percent of all ICC cases resolve either with the target letter or our contacting the civil attorney.
    If these steps do not resolve the case, we proceed as if it were a normal prosecution, but with the overarching goal of reuniting the aggrieved parent with the child. We implement alternate solutions, such as informal deferred prosecution agreements, with the input and assistance of defense counsel to align everyone’s interests and to bring the violator back into compliance. This almost always works, and in the two years since the inception of this policy, we have not had to set an ICC case for trial.
    Of course, there may be other factors that will impact the success of such a program in another county. Guadalupe has a population of about 150,000. This method may be too cumbersome for smaller offices and too specialized for large ones. Additionally, community standards may be different in other locales and may bear heavily on how a case should be handled.
    As in every instance where a child is involved, we try use our best judgment in doing what is in the child’s best interest. It is our sincere hope that the methods that have been successful for us in Guadalupe County may be of service to other prosecutors in your continuing efforts to resolve these challenging cases.