Even if everything else you have tried has failed, this can work.
Do you need to sue your ex or your mother-in-law, the grandparent, because they keep denying you your child in violation of a court order, and they made false allegations about you as well to justify getting a restraining order against you to completely cut you out of your child's life while their false allegations were under investigation, but now you are broke after having to defend yourself against those charges. Or you just might not have the stomach to go in front of the judge again and are afraid that you'll just be denied.
Even if going to the police failed (told it was a civil matter), going to the district attorney to enforce penal code 25.03 failed (told that they don't like to arrest parents and to take your complaint back to the judge), going to an attorney got you nowhere (told that they were going to need another retainer and you didn't get very good results for your money the last time around), this can work.
Is there a better way?
It can be impossible to enforce your order the traditional ways the attorneys have been using, whether you can afford it or not. It takes a very long time and can be very expensive. It is also very technically difficult because it is quasi-criminal. So you might want to know that there is another way that provides you personally and your child with damages for emotional distress and the expenses you had to go through to bring your child home if they were abducted as well.
If you are searching for alternative relief you have come to the right place. But let's cover who else can use this statute before we get into what the statute can do for you and your child and what kind of relief you can get.
Have you not seen your child for an extended period of time and nothing you have done has worked?
If you have lost hope and just been left with counting the days you've been erased from your child's life, documenting and counting the violations and number of days and nights that have gone by without seeing your child, and the other parent's relatives and friends have jumped on board and are preventing you from seeing your child, you are experiencing exactly what the Texas Supreme Court has labeled as "the greatest loss a parent can suffer." And this is exactly the situation this statute covers.
The Texas Supreme Court says that the loss of your children is the greatest loss you could ever suffer, and that by the time you get through litigation you might have lost the relationship with your children forever. They may grow distant and see you as a stranger. So even a win eventually can mean that you still have lost your children. Bottom line, litigation takes too long. By the time you get through this your health has suffered, the children's health suffers, and nothing can repair the harm that not enforcing the orders has caused. This is what they call irreparable harm. When this is the case, there may be nothing else a court can do but award you some money for the damages.
A by product of being cutoff from your child is parental alienation. This is when a child is taught to dislike and distrust a parent unjustifiably. This statute gets you monetary damage for being cut off from your child and the poisoning of their mind to make them refuse to go with you or see you can get you a lot of money under this statute.
What is this statute?
This is Chapter 42 under the Family Code in Texas. This is the parental liability code for interference with a possessory right.
Chapter 42 of the Texas Civil Remedies and Practice Code. Section 42.002 is defined as (a) 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. (b) 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.
Can I add this to my Child Custody suit if I already filed contempt on my ex?
Yes, even if you have an enforcement/contempt suit in motion right now, you can still apply this method as well. Some attorneys don't use this statute though because they see the enforcement action as your relief, and might consider it duplicate relief. (It's not and we're going to tell you why a little later in this post.)
You might have to explain to your attorney that you feel you are entitled to the relief under Chapter 42 in addition to the enforcement action if you have both going at the same time. You might want to explain to your attorney that the enforcement provides relief to the court for the disrespect of their orders. Enforcement does not provide you relief for the emotional distress or your child or for the other costs you might have incurred in locating your child, trying to stay in touch with your child, and ensuring that your child was brought back.
Are you having trouble finding anyone to enforce your order without going through expensive enforcement and contempt hearings?
It can be very expensive to do enforcement and contempt and you cannot get an award for your suffering like you can in Chapter 42 under the enforcement statutes. It does not appear that you have to do enforcement to qualify for a suit under this Chapter.
Have you been denied enforcement?
Is no one willing to help you enforce your orders, not the D.A., not the police, and not even the judge, and you are becoming more and more alienated from your child. This is another reason you might want to look into a Chapter 42 suit. You can bring that suit as a standalone suit as well. It does not appear that you have to have any other suit going at the time. You would talk to an attorney regardless of whether you are pro se or not, to get the rundown on how tort lawsuits happen. And you might even be able to talk the attorney into taking the case and doing the suit for you since they can recover their attorney fees and the amount you can ask a jury for is not capped, it appears to be pretty much unlimited. So if the attorney takes it on consignment perhaps perhaps the two of you can agree that the attorney can get a bigger percentage of the award if the suit prevails. it is more than the attorney would have made just charging you up front. That's assuming the attorney is any good. If an attorney is good they will be confident in their abilities and if your case is solid, you probably have a good shot with a good attorney recognizing the potential here and you won't have to present this one pro se. You'll still want to manage your case and keep learning about this method and what you can about the rights that have been affected. You never want to pursue any kind of litigation without knowing as much about your rights as you can. So keep reading and we hope that you will stay with us and keep learning.
Chapter 42 is not really enforcement, in that it does not put the parent in jail, it does not give you makeup time, and there is no other punishment other than money. Although if the other parent has abducted the child you should be able to retrieve the child and be reimbursed for the costs to do so according to this statute. But that's just the wording in the statute. Always check with an attorney before you translate that to your actual case. And always look at appeals to see how they have addressed your question too.
This Chapter also lets you sue all other people who hid your child from you for the other parent. Regular enforcement does not give you that option either.
Do you want to sue for the emotional distress you and your child have gone through?
This is another good reason to explain to your attorney why you want to add a Chapter 42 suit into your pleadings or do a standalone suit if you have no other actions pending in the family courts at the time. And by the way, we are told that only your family court judge is going to hear this. so if you had hopes of taking this to another judge, then you will want to address that up front and see what your options are. As it stands now, we believe that it will be put with the judge who has been deciding issues on your case if they are still a judge.
You could have a lifetime of expenses after a long separation from your child. You might need to take your child to therapy and also treat other conditions that could have developed over time from this shocking separation. You might have gained weight, developed hypertension, even cancer! When you go through this kind of stress your body suffers damage as well. Your child could also develop terminal diseases as well as have developed anxiety, abandonment fears, trust issues, that can all lead to depression as well as erratic behaviors in their teen years where they could seek out relationships with people that are not healthy for them, get pregnant early if it is a daughter, drink, use drugs, drop out, or even runaway because they no longer trust authority. Afterall, they didn't get the protection they were entitled to from the judges who were sworn to protect their relationships with both of their parents, so why should they trust any adult now. They could end up in prostitution or gangs. The suicide rate for adults and children who have gone through this are increasing as well.
Did you know that you can do this for yourself?
You don't need to wait on the police or the D.A. to decide to bring a suit against the parent before you do t.)his. And the AG isn't going to do it for you either.
It’s easy actually, as long as you qualify. It doesn’t cost any more if you are already in court, and you get the damages we described above, so that should help you with the costs. And remember you can even sue on behalf of the emotional suffering of your child and get to cover the expense of getting your child healthy again too. (Always consult with an attorney though because any suit can be turned around on you and then you get stuck with paying for the other sides attorney and possibly more.)
Has your ex used sexual abuse allegations against you that were proven to be false? Did you know that you can get relief for this as well?
This would be one of the elements that you would use to prove that your ex behaved obnoxiously so that you qualify for the extra or "exemplary" damages. An attorney would know more about how and what you need to do to qualify for those. But this is in some of the appellate decisions as a reason for assigning the obnoxious label on the violator parent.
How long has this code been used?
Texas has had this solution in their Family Code at least back to 1983. This statute is not in the Suit Against Parent Child Relationship Chapter or in the Enforcement Chapters though. It is not enforcement, it is a relief statute that is found under a little-known section called Parental Liability. This is not an enforcement code and does not change custody orders, and it may not even bring your children home. The relief does not include makeup time with your child -- the enforcement statute covers that. If you are noncustodial you can use this method too. As you can see this statute gives you an added layer of protection, and each statute has some relief that the other doesn't have. Regardless of what method you use, you will only get your children if it is your time with them, or an order is created changing custody. Nothing in this code says that anyone has to retrieve your children under this suit, but it does reimburse you for these efforts. You can recover what it costs you to locate your child and to retrieve them and bring them back so if it is during your time or the court issues an emergency order for you to have possession until the matter can be heard. This suit does give you a way to recover all of those expenses and get relief as a tort. This suit gives you not only damages for emotional harm for you and your children but also the tortious damage you have all suffered. You can get money not only from the ex but also from all of the people that helped your ex interfere with your custody time. For some of you the children are almost grown and the children hardly know you anymore. The Texas Supreme Court knows this and has upheld awards of over 5 million dollars for missing your children, having your relationship destroyed, made into a stranger to your child, for having them taken in violation of a court order.
Is the other parent liable for the emotional distress you and your children have suffered?
Not only is the parent liable but also grandparents, aunts, uncles, cousins, friends, neighbors, co-workers, basically anyone who assisted them inn keeping your children away from you. There are technical requirements that you have to meet in order to get your case to qualify for these damages from individuals who may not be parties to your original action. We will go over that more in the course. You can register for the webinar on enforcement and relief if you want to learn more about this.
You may have heard of parent’s being liable for their children vandalizing public property or for their children skipping school. But what about being liable for a child refusing to go to the other parent?
Can I Sue for Parental Alienation Under this Chapter 42?
This chapter also is relief for parental alienation. It does not say that on its face but when you think about it, what's more emotionally distressing then having your child turned on you unjustifiably and their mind poisoned to believe false things about you, and not trust you. But the kind of PA that you are suing for in this Chapter is not for the type where your child is just throwing temper tantrums and saying that they hate you. This suit is for parents who can no longer get their child to come with them at all, are not getting their child, and the other parent says they cannot make the child go or just flat out refuses to make them go. This could also be a grandparent doing this, a cousin, an uncle or an aunt, a friend of your ex, and neighbor, anybody acting in concert with the other parent or on behalf of the other parent qualifies.* This parent is liable for the child not complying with the court orders.
Can I sue the other relatives that are helping my ex interfere with child custody?
YES! Under Sec. 42.003 you can sue grandparents, cousins, aunts, uncles, and even other people like friends who help your ex keep your children away from you against a court order. Sec. 42.003 says: AIDING OR ASSISTING INTERFERENCE WITH POSSESSORY RIGHT. (a) A person who aids or assists in conduct for which a cause of action is authorized by this chapter is jointly and severally liable for damages. (b) A person who was not a party to the suit in which an order was rendered providing for a possessory right is not liable unless the person at the time of the violation: (1) had actual notice of the existence and contents of the order; or (2) had reasonable cause to believe that the child was the subject of an order and that the person's actions were likely to violate the order.
Can I Sue My Ex After Making False Allegations of Sexual Abuse and get Money Damages!
This Chapter has been used to sue a mother who made false allegations of sexual abuse after the father was cleared of the abuse charges. That was not the only complaint made against the mother to support this Chapter 42 suit however. So if that's all you have you will want to check with the attorney that you consult with to see whether you risk having this suit turned on you.
What statute in Texas allows me to sue the other parent and the grandparents for interference with child custody?
We just answered this above in "Can I Sue for Parental Alienation Under this Chapter 42" and under "Can i sue the other relatives that are helping my ex interfere with child custody."
Grandparents and anyone else who aids and assists another parent in the taking and keeping of your child is liable and can be sued under Chapter 42.
Has Anyone Won any of these suits?
And this has worked. The Texas Supreme Court has upheld these suits.
How do I do this?*
Now you know that we are not attorneys. However, because we used this Chapter in the past we know that you do not even have to file a separate suit or have separate hearings for this if you are already in a SAPCR proceeding. You just add a Chapter 42 suit into your current child custody original suit pleadings or modification suit. We did it by amending our pleadings. And remember, you are entitled to this relief even if you also have an enforcement/contempt hearing filed against the other parent as well. The two are not dependent on or affect the other. You are entitled to both. (With the caveat that we do not know the details of your case, so it may be that you have something in your case that could change this for you. We don't know, we are speaking in general terms. Even when we say "YOU" we mean generally and not from a legal sense. An attorney has the final say on what you are or are not entitled to.)
How much does it cost?
You might be able to get an attorney to do this without any money up front. They could take a percentage after you win this suit. This is not your typical family law suit where everything is subjective. These suits have a proven track record of winning!
Texas legislators made sure that you can get relief from attorney’s fees, relief from the cost of locating and retrieving your child, recovering possession of your child, the cost of enforcing the order and prosecuting the suit, mental suffering and anguish incurred by you because of the violation of the order, and if the other parent acted with malice like making false allegations of child sexual abuse or any other obnoxious actions they committed, you can also ask for “exemplary damages” as well!
So why haven’t you heard of this statute and why aren’t more attorneys using it?
Well actually you don’t know how many attorneys are or are not using it, since you will only hear about it if it goes to appeal. And a pro se litigant might not know to use it because it conveniently is not mentioned anywhere in the section of the code that people use to fight for child custody in the first place, and is not mentioned in the enforcement or contempt sections of the code, or the penal codes for kidnapping or interference with possession.
I found out about Chapter 42 actually when the attorney amended her pleadings and added it into the pleadings for modification of custody as a request for additional relief. That request never got heard however because the child custody modification went away. Ron used other strategies to make the custody suit go away. Make sure you come to our Pain to Power webinar if you want to hear about these strategies and use them too.
When would you Use this Suit?
Is the other parent refusing to surrender the children to you during your court ordered time? That's when you would use it. But keep in mind this is a tort and tors have additional requirements. You are going to have to prove that the keeping and taking has been obnoxious and if you are suing another person that was not originally part of your original child custody suit then that person has to have 1) had actual notice of the existence and contents of the order; or (2) had reasonable cause to believe that the child was the subject of an order and that the person's actions were likely to violate the order.
When you have already spent thousands and thousands of dollars getting orders and then you cannot enforce the orders, this is the damage that happens. Parents become strangers to their own children. This happens because some parents cannot afford to go back to court to enforce. Some just feel it is a waste of time and money because they just get denied. Some are in court proceedings already but cannot get the judge to care that they are not getting their time with the children.
The good news is Chapter 42 allows you to take things into your own hands and add this into your current pleadings; add it as an additional request for relief. You might want to change your suit to a jury trial if you want a jury so make sure you follow the rules for that. This is one of those rare times I would suggest requesting a jury. I wouldn’t leave this in the judge’s hands especially with their track record of not enforcing the order or not doing anything about it when their orders are violated.
If the judge is not doing anything to make the other parent give you the children what can you do?
File a Chapter 42 suit and ask for a jury. This suit does not require that the judge agree with you and doesn’t matter if the judge denied enforcing your order. In fact, I don’t believe that this option for relief goes away even if the judge creates a new order not giving you any time with your children at all anymore. Enforcement goes away when that happens, but not this suit.* Make sure you understand when this suit applies and when it doesn't though.
What is the risk of filing a suit like this?
You can be sanctioned if the judge decides that the suit did not have merit. You will need to make sure that the reasons you are filing the Chapter 42 suit qualifies properly.
Make sure you check with an attorney before you bring this suit, you can have the expenses put on you if you mess this up. I know we said that it is simple and not that expensive when added to a suit action you already have going, however, it is not without risk. If the jury finds that the suit was without foundation, unreasonable, or frivolous you can be charged their attorney fees and they can receive an awarded judgment under Sec. 42.009.
Sec. 42.009. FRIVOLOUS SUIT. A person sued for damages as provided by this chapter is entitled to recover attorney's fees and court costs if: (1) the claim for damages is dismissed or judgment is awarded to the defendant; and (2) the court or jury finds that the claim for damages is frivolous, unreasonable, or without foundation.
Can I still sue under Chapter 42 if I owe child support?
Yes definitely, but if you are not facing enforcement yet, you might not want to go back into court until you are fully prepared to face enforcement because as soon as you file this, you can bet they are going to file for contempt on you for the child support as well. Make sure you watch the child support enforcement webinar and get that information too before you do. And read the response to "What is the risk of filing a suit like this" in this blog post just above this section. When you owe child support and the other parent is withholding the children from you because you have not paid your child support, is illegal. But there are parents still doing it anyway because they expect that you will not know or be able to afford to fight back. We make things affordable. You can take some shortcuts and get the arguments that we have already made and take those to your attorney. Getting the protection you are entitled to is affordable and accessible.
How far back does this statute go?
This statute was adopted into the Family Code from common law codes back in 1983. The legislators put this Chapter in place, USE it to help you recover from the devastation and expense and punish those who violate child custody possession court orders and cause you damage to your parent-child relationship and damage to your child. False allegations and keeping a child away from the other parent causes parental alienation and lots of mental health disorders like depression, PTSD, and suicide. Parents have been going bankrupt and have not had enough ways to get relief. Since enforcement is so difficult and costs so much and the parent doesn't see any of that relief other than made some of their attorney's fees covered, we suggest that attorneys start using this statute more.
I’m going to repeat myself, this statute actually lets you bypass the police, district attorney, and the attorney general. That’s right you do not need their help to add this to your current custody suit or modification. You will still need proof that you did not get the children so those police reports will still be helpful as evidence.
Does this help me bring my children home and change custody?
Not directly, although you will see, this statute while it does not bring your children home and does not change custody directly, you can use it for the costs you incurred in getting the order enforced and for locating your child bringing them back if they were abducted. And then you might want to use argument regarding having to do this after you win a changed circumstance to persuade the court to change custody after you successfully sue the other parties.
What it does is give you a way to get monetary damages for the violation. And the best part is that there is no cap on how much a jury can award you for not getting your children when you were supposed to.
Yep, I said a “jury.” Parents who have sued using Chapter 42 usually use a jury. And the juries have awarded large sums of money too, like 10.5 million dollars large!
So it’s clear that juries do not take lightly a child not getting to see their other parent.
What Defenses Can be used to get out of being sued under Chapter 42?
The only defense listed in this section is if you and the other parent agreed to them having the children during your time. So if the two of you as the Chapter puts it, agreed to the violation of the order.
Sec. 42.007. AFFIRMATIVE DEFENSE. The defendant may plead as an affirmative defense that the defendant acted in violation of the order with the express consent of the plaintiff.
Can My ex use domestic violence as a reason to get out of this suit?
What we have seen is parents who have been falsely accused of sexual abuse use this statute after they have been cleared of the false allegations.
Can my ex get out of it by saying that I didn’t pay child support?
Nope, not paying child support is not a valid defense in this statute. If you win a suit under this section they will have to pay you regardless. In fact I talk about this in a couple of live Facebook videos that I did. You can watch the videos right here:
What if my Ex is Withholding my Children Because I Owe Child Support?
This is illegal in two ways.* The law says that your child cannot be kept from you because you owe child support and if you have an order that says you have the right to specific times and days with your children, then the other parent has to turn them over to you. Not doing so is violating your order.** This is a start and one of the criteria for a Chapter 42 suit, the withholding of your children in violation of a court order part, and you might be able to use the reason as an obnoxious reason, but check with an attorney on what qualifies as obnoxious. We don't want to see this get flipped on you and you get charged for the ex's attorney.
How Do I Use this Statute in my Current Suit?
This is a civil statute in the Texas Civil suit under the Family Code that parents have used and won millions of dollars! And you can add it right into your current child custody suit or modification action right now! You would amend your pleadings and add in a Chapter 42 suit for damages. This is not an enforcement or contempt proceeding so there is no need to have a separate hearing to get these damages. All you need to decide is whether you want a jury. And since juries have been so willing to award large amounts of money for these kinds of violations, I would use a jury if it was me.
What if I don’t have enforceable language in my order?
The nice part about this section of the statute however, is that it does not appear that this matters, other than it has to be clear that you were entitled to a specific date and time certain for possession of your child. So it doesn't look like you need “enforceable” language necessarily to use this section to sue your ex and their relatives and friends who are coming between you and your children. It does need to be clear that it was your time and you didn’t get your time because of something that they did. But double check this with an attorney though.
Do I need to prove that I’m being alienated to use this statute?
No, you do not need to prove that you are being alienated. And there is no defense in this Chapter that says that a child not wanting to go is a defense either. The reason this statute was put in place is so that you have something to use to enforce when the other parent and their friends and relatives decide they still aren’t going to let you have time with the children even though they lost that battle in court. This statute is intended to give you relief for this violation.
Ron’s ex added this section into her pleadings for relief when they were getting divorced after she changed how they were exercising their time with their daughter when she re-married. Her attorney put it into the original pleadings as amended pleadings asking for $10,000 in damages. You can ask for any amount though, there is no cap.
Why Would an Attorney Not Use This Statute?
You might ask why your attorney hasn’t put this statute into your pleadings. There may be many reasons related specifically to your case that the attorney has for not using this statute in your case. I believe the number one reason would be your attorney not wanting to use this method of suit if they don't think that you have enough to qualify and they are afraid that a jury or judge might find the suit without foundation or frivolous.
Here are a few more possible reasons for you to ponder and think about and ask your attorney about:
When you win a judgement in Texas that is considered an asset that you acquired then it is generally a taxable asset so you might have to pay taxes on it regardless of whether you can collect the money. But this award under Chapter 42 so it might not apply like that. You will just have to check with an accountant attorney.
Another reason might be that both of you are doing things wrong and not following orders.
Another one could be that your behavior has been bad and the attorney could be afraid that the jury could find you to be a bad actor and then find the suit in bad faith.
The other reason might be because they just don’t know how and they have never used it.
Why don't attorneys use this statute more often?
You can ask your attorney to amend your pleadings and add in a Chapter 42 suit. Here are some of the reasons that I have been given about why they may not use this statute. Most of them use the enforcement/contempt statute which they say has relief, jail time, and attorney's fees.
However, our response to this is that the enforcement statute is to protect the state and the order that they created, not you. Chapter 42 gives you damages financially and emotionally.
Additionally, Chapter 42 allows suit against individuals who are not necessarily parties to the suit like grandparents, neighbors, and other friends and relatives.
Where can I Learn More?
Updated on October 10, 2019 at 9:52 a.m. cst
Beginner's Guide to Family Law
A Simplified Path to Parental Rights
For a loving parent, a child custody suit can be a time of terror. The most important thing in your life is at stake and it doesn't take long to figure out that the system is rigged against you. This book provides simple straight forward and easy to understand ways to help ensure that your rights get protected. This is the starter guide for you to protect your rights.