By: Bill Melugin EL PASO, Texas - A KFOX14 special assignment has discovered it is the unwritten policy of Texas law enforcement to not make arrests or charge persons with the crime of interference with child custody.
Under Texas Penal Code 25.03, interference with child custody is when someone takes or retains a child when that person knows that the taking or retention of the child violates a judgment or order. It is considered a state jail felony, punishable by up to two years in prison.
KFOX14 received a tip from El Paso attorney Mark T. Davis that the crime was not being enforced, and that El Paso law enforcement has an unspoken policy to treat it as a civil matter, rather than a criminal one.
"I was in a trial downtown for a client of mine, a father, and he had many times told the police, 'I can't get my children, this is a violation of the law, please do something about it,' and he repeatedly was told that it's a civil matter, not a criminal matter, You need to check with the court of continuing jurisdiction, get your private attorney," Davis said. "Later on, I tried the case, and I subpoenaed those officers, and they confirmed what they had told him, it's the policy of the El Paso Police Department that they don't make arrests for the Texas penal code, interference with child custody, which is a felony."
Davis sent open records requests to law enforcement in the five largest metropolitan cities in the state of Texas to find out if this was the case anywhere else.
Documents requested included written policies on interference with child custody, and records of any arrests or charges as a result of it for the year 2012.
All documents were provided to KFOX14.
"The results are shocking to me," Davis said.
The El Paso Police Department provided a written policy stating that they will review every report dealing with Interference with Child Custody, and that they will be treated the same as any other criminal investigation. However, EPPD couldn't produce records of any arrests for the crime. The El Paso County Sheriff Department and District Attorney Jaime Esparza's office both have no written policy on penal code 25.03, and couldn't produce records of anyone being arrested or charged for Interference with Child Custody. Emails dated July 2012 between an EPCSO commander and lieutenant, say that deputies were told by Esparza's office that "they don't waste their time with civil matters," and that they feared administrative action if they referred any cases.
The Houston Police Department gave a specific written policy that states "No charges will be present at D.A. intake," and it instructs officers to refer complaining parties to civil court. Harris County District Attorney Devon Anderson didn't respond to the open records request, and the Bexar County Sheriff, Adrian Garcia, indicated there have been no arrests under the law.
San Antonio police did not provide any written policy against enforcement of Interference with Child Custody. They provided a list of incident reports for the law, but could not produce records of any actual arrests. The Bexar County Sheriff Department and District Attorney's Office did not provide any records of anyone being arrested or charged under penal code 25.03.
The Dallas Police Department could not provide any records of any arrests, and Dallas County Sheriff Lupe Valdez ignored the open records request. Dallas County District Attorney Craig Watkins said there was no policy on penal code 25.03.
The Austin Police Department has no written policy against enforcement of Interference with Child Custody, but they didn't make any arrests. The Travis County Sheriff Department indicated they had made five arrests, and the district attorney cited only two people in Travis County who had been charged. Austin was the only major city in Texas that had any record of anyone being charged for interference with child custody, both of which were actually filed in court.
"For some reason, and I don't know the reason, it's the policy across the state of Texas to not enforce interference with child custody," Davis said.
Two fathers who spoke to KFOX14 said that policy kept them out of their kid's lives as they grew up, despite court orders.
"My problem I have is with my daughter Jasmine, when she was born, her mom decided to keep me away from her, up until she was 7," said Javier Barraza, a father of three. "Every single time, 40 to 50 times, a year, I was denied visitation with my daughter, I fought that hard."
Mark Krieger shared a similar problem with Barraza.
"A couple of years ago, my wife filed for divorce. Shortly after that, she fled the home with my two youngest sons. Since that time, she's done her best to prevent me from seeing or spending time with them," Krieger said. "I was ultimately granted final custody of all three children in the family, there's a court order granting that, and even with the court order she's done her best to prevent me from seeing my sons."
Both men told KFOX14 they filed multiple police reports, but were always told the same thing.
"I know it's illegal to interfere with the lawful custody of a child, and most officers will simply explain that it's a civil matter, they can't help it's beyond their jurisdiction, the most they can do is file a report," Krieger said.
"We'd call the cops, the cops showed up, and one of the times, the cop was there, she walked out and they said they can't do anything, even though I had the paperwork with me saying what the situation was, that it was my time. Nothing ever happened. They let her go," Barraza said.
The men feel they've been robbed of experiences they can never get back.
"Push a shopping cart off a Walmart parking lot and see how much legal trouble you get into. It'll be measurable and significant, but interfere with custody of a child, and virtually nobody cares," Krieger said.
"You can't make up time. There's no way you can make up time. She'll never be 2, 7, ever again," Barraza said.
The El Paso Police Department never responded to requests for a comment from KFOX14, but former EPPD commander Roy Davis sat down with us to give us some insight on what the interference with child custody police was while he served.
Davis was in the force for 20 years, and rose to the department's third highest rank.
"During my tenure there, it actually was not enforced," Davis said.
Davis told KFOX14 whenever he would try to push an interference with child custody case through, he would be questioned by his supervisors.
"The response was pretty much, 'Why are you doing this? It's kind of a waste of time, it's not going to go anywhere anyways,' and they would even say, 'This is civil, this is a family issue. We as police officers, we don't get involved in civil issues so you shouldn't be doing this.' My response was always, 'Well, it's in the penal code,'" Davis said.
KFOX14 asked Davis if he could recall a single case ever going through during his 20 year tenure in EPPD.
"During my time I was personally unaware of any case that went all the way through the system and was looked upon, or prosecuted," Davis said. "It was definitely frustrating at times because people would call, they are victims, they are reaching out to law enforcement for assistance, for a law that is on the books, and basically we're put in a position where we're not allowed to assist them."
El Paso County District Attorney Jaime Esparza sat down with KFOX14 to explain his stance on enforcement of Interference with Child Custody. Esparza was very open, and answered every question directly.
"It's generally a civil matter, but it can be criminal, as a result, if you just look at our numbers, we don't take very many of these cases, because they're family members and it's generally complex, and as a rule, they're civil matters, and there's a fine line between when does the civil conduct, the civil wrong, actually become criminal conduct?" Esparza said. "The reality is, they are complex crimes, they are family matters and the violations of the order generally are minor, theoretically technically a crime, but because the family court is dealing with the issue, we generally don't get involved."
KFOX14 asked Esparza about the emails between EPCSO deputies citing retaliation from his office if they attempted to move forward with an interference with child custody case.
"Wow, I don't think that's accurate," Esparza said.
Esparza told KFOX14 his office was referred more than 70 non-arrest cases for Interference with Child Custody in 2013, but only accepted one of them.
"In many of the cases that we decline, it's going to be because the order was technically violated, so technically you did break the law, but the violation is minor. Sometimes they call police because the child is an hour late," Esparza said.
KFOX14 asked Esparza if he can recall ever bringing an interference with child custody case to prosecution.
"That's a really good question. My numbers indicate we take very few of these cases so my guess is we've probably prosecuted a handful of cases where there was a plea or some resolution short of dismissal or decline," Esparza said.
Esparza admitted his office may need to be a bit more aggressive when it comes to repeat offenders.
"If there's an intentional violation of the court order repeatedly, and taking advantage of the system generally knowing we're not going to make an arrest, in that case, we need to step in," Esparza said.
Esparza said that child custody cases are simply too complicated and filled with so much he said/she said, like most family issues, that it can become extremely difficult to enforce criminally, regardless of what the state penal code says.
"It's tough because it's in a very gray area, because technically it's a felony, we're aware of that, it's just, is it really smart for us to be enforcing the family court order, when the family law judge can be doing that, and not having to use criminal justice system?" Esparza said.
KFOX14 was told the Domestic Relations Office of the county of El Paso is referred some of the child custody cases from the DA's office to enforce in a civil matter. Numbers on how many of those cases have been accepted and pursued were not readily available, as KFOX14 is waiting for a call back.
Esparza said he can understand why EPPD may get frustrated with him for not accepting any child custody cases, but that if every child custody case was pursued criminally, mothers and fathers would be calling endlessly to try to get each other arrested.
"Where we might be in disagreement with the police, is whether or not the violation is so grievous that it's criminal. It's our responsibility to make sure that it gets to a criminal level," Esparza said.