Is it a crime to keep your child in Texas?
It can be. Penal Code §25.03 makes it a state jail felony, 180 days to 2 years, to take or retain a child under 18 in any of three situations: knowing it violates the express terms of a custody order, including a temporary order; taking the child out of the court's geographic area once a custody suit has been filed and before anyone has been awarded custody; or taking or keeping the child outside the United States. A separate offense in §25.03(b) covers a noncustodial parent who entices or persuades a child to leave. There are real defenses written into the statute, including one for a parent fleeing family violence.
- A temporary order counts. §25.03(a)(1) says "including a temporary order", so there is no safe period before a final decree.
- You can commit it with no order at all. §25.03(a)(2) applies once a suit has been filed, where nobody has yet been awarded custody.
- "Child" here means under 18, which is wider than Chapter 22, where a child is 14 or younger.
- Three days is a complete defense to the (a)(2) route. Returning the child to the court's geographic area within three days answers that subsection.
- Fleeing family violence is a statutory exception to the international route under §25.03(c-2), for a person entitled to possession or access.
- No taking is needed for the (b) offense. A noncustodial parent who persuades the child to leave commits it.
- Kidnapping takes precedence. Where the international route also makes out §20.03, §25.03(e) says the actor may be prosecuted only under §20.03.
These charges arise in the worst week of a family's life, and they are often filed on one parent's account of what the order said. They also arise where a parent genuinely believed they were protecting a child. Both can be true at once, and the statute has more detail in it than either side usually expects. Peter M. Barrett has defended Dallas County cases since 1994, across more than 150 jury trials, and the case review is free and confidential. This guide sets out what §25.03 requires.
The three taking or retaining routes
| Subsection | What it covers | The key limit |
|---|---|---|
| §25.03(a)(1) | Taking or retaining a child when the person knows it violates the express terms of a judgment or order disposing of custody, including a temporary order | Knowledge of the order and of what its express terms say |
| §25.03(a)(2) | Where the person has not been awarded custody, knows a divorce, civil suit or habeas application to dispose of custody has been filed, and takes the child out of the geographic area of the counties making up the judicial district (district court) or the county (statutory county court), without the court's permission and with intent to deprive the court of authority | Requires intent aimed at the court, not at the other parent |
| §25.03(a)(3) | Taking or retaining the child outside the United States, with intent to deprive a person entitled to possession or access, and without that person's permission | Subject to the defenses in (c-1) and the exception in (c-2) |
The separate offense in subsection (b)
§25.03(b) is aimed at a different situation and is easy to miss. A noncustodial parent commits an offense if, with intent to interfere with the lawful custody of a child under 18, that parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in their place.
There is no taking in this subsection. No car journey, no border, no violation of a geographic boundary. Persuading a teenager to walk out can satisfy it. The elements that carry the weight are that the person is the noncustodial parent, that the persuasion was knowing, and that it was done with intent to interfere with lawful custody rather than, for example, in response to something the child reported.
The defenses and the exception, which are the heart of the section
Three days, for the (a)(2) route
§25.03(c) provides a defense to prosecution under (a)(2) where the actor returned the child to the geographic area of the counties composing the judicial district, or the county for a statutory county court, within three days of the offense. That is a short, hard-edged window, and it is worth knowing in the first hours rather than later.
Valid order, or circumstances beyond control, for the (a)(3) route
§25.03(c-1) gives two affirmative defenses to the international route:
- the taking or retention was pursuant to a valid order providing for possession of or access to the child; or
- notwithstanding any violation of such an order, the retention was due only to circumstances beyond the actor's control, and the actor promptly gave notice, or made reasonable attempts to give notice, of those circumstances to the other person entitled to possession or access.
The second is the provision for a trip that went wrong: a canceled flight, a lost passport, an illness abroad. What it requires is the prompt attempt to tell the other parent. Silence is what turns a delay into a charge.
Fleeing family violence
§25.03(c-2) is not a defense but an exception: subsection (a)(3) does not apply where, at the time, the person taking or retaining the child:
- was entitled to possession of or access to the child; and
- was fleeing the commission or attempted commission of family violence, as defined by §71.004 of the Family Code, against the child or against that person.
Both limbs are required. A parent with possession rights who leaves the country while fleeing family violence is outside the international route altogether. Where this is the situation, the evidence that matters is the contemporaneous record: reports, messages, photographs, medical notes, protective order filings. It is worth gathering before anyone gives an account of the trip.
Where kidnapping takes over
§25.03(e) provides that if conduct under (a)(3) also constitutes an offense under §20.03, kidnapping, the actor may be prosecuted only under §20.03. That matters a great deal, because kidnapping is a third degree felony and aggravated kidnapping under §20.04 is a first degree felony, against a state jail felony here.
The dividing line is abduction, which under §20.01 requires restraint plus intent to prevent liberation by secreting the person or by using or threatening deadly force. Our guide to kidnapping and unlawful restraint works through that distinction, and it is the single most important thing to get right when the allegation involves a child taken abroad.
Punishment and disposition
Under §25.03(d) every offense in the section is a state jail felony: 180 days to 2 years in a state jail facility and a fine of up to $10,000. §12.35(c) punishes a state jail felony as a third degree felony, 2 to 10 years, where a deadly weapon was used or exhibited during the offense or immediate flight from it, or where the person has certain prior felony convictions.
On supervision, §25.03 appears on neither the art. 42A.054(a) list of offenses for which a judge may not order community supervision, nor among the offenses excluded from deferred adjudication by art. 42A.102(b). Both routes are legally available, which matters because a felony conviction carries its own consequences in the family case that follows.
The family case and the criminal case are not the same case
These run on separate tracks, with different standards of proof, different timetables and different consequences, and what is said in one is usable in the other. An affidavit filed quickly in the family court to explain a trip can become the State's strongest evidence of knowledge and intent. An account given to a police officer can shape the possession order for years.
The order matters, and so does the sequencing. Where both are live, they are worth handling together rather than letting each lawyer work without the other's filings in front of them.
Where these cases turn
- What the order actually says. (a)(1) requires violation of its express terms. Orders are frequently ambiguous about holidays, exchanges, travel and make-up time, and an ambiguity is not an express term.
- Knowledge. The State must prove the person knew of the order and that the conduct violated it. Service, timing and which version of an order was in force are concrete, checkable facts.
- Intent to deprive the court, for (a)(2). That is a specific intent aimed at the court's authority, and it is not established merely by crossing a county line.
- Permission. For (a)(3), the absence of the other person's permission is an element, and informal agreements by message are common and provable.
- The three day return, where (a)(2) is charged.
- Family violence, where the exception in (c-2) is in play.
Is interference with child custody a felony in Texas?
Yes. Under Penal Code §25.03(d) every offense in the section is a state jail felony, punishable by 180 days to 2 years in a state jail facility and a fine of up to $10,000. It can be punished as a third degree felony under §12.35(c) where a deadly weapon was used or exhibited, or on certain prior felony convictions.
Can I be charged if there is only a temporary order?
Yes. §25.03(a)(1) expressly covers a judgment or order of a court disposing of the child's custody, including a temporary order. There is no period before a final decree during which the order can be disregarded. The State still has to prove you knew of the order and knew that what you did violated its express terms.
What if no custody order exists yet?
§25.03(a)(2) covers that. Where you have not been awarded custody but know that a divorce, civil suit or habeas application to dispose of custody has been filed, taking the child out of the geographic area of the counties making up the judicial district, or out of the county for a statutory county court, without the court's permission and with intent to deprive the court of authority over the child, is the offense. Returning the child to that area within three days is a defense under §25.03(c).
What age counts as a child for this offense?
Younger than 18. That is wider than the Penal Code Chapter 22 offenses such as injury to a child and abandoning or endangering a child, where a child is defined as 14 years of age or younger. A 16 year old is a child for §25.03 but not for §22.041.
I left the country with my child to escape abuse. Is that a crime?
§25.03(c-2) provides that the international route in (a)(3) does not apply where, at the time, the person was entitled to possession of or access to the child and was fleeing the commission or attempted commission of family violence, as defined by §71.004 of the Family Code, against the child or against that person. Both limbs are required. The contemporaneous record of the violence is what proves the exception, so it is worth gathering before giving any account.
Can I be charged for talking my child into leaving?
Yes, under §25.03(b), which applies to a noncustodial parent who, with intent to interfere with the lawful custody of a child under 18, knowingly entices or persuades the child to leave the custody of the custodial parent, guardian or person standing in their place. No taking, travel or physical act is required; persuasion is enough where the intent is proved.
What is the difference between this and kidnapping?
Kidnapping under §20.03 requires abduction, which under §20.01 means restraint plus intent to prevent liberation by secreting the person or by using or threatening deadly force. Interference with child custody requires none of that. §25.03(e) also provides that where conduct under the international route in (a)(3) also constitutes kidnapping, the actor may be prosecuted only under §20.03, which is a third degree felony rather than a state jail felony.
Can I get probation for interference with child custody?
Both regular community supervision and deferred adjudication are legally available. §25.03 is not on the art. 42A.054(a) list of offenses for which a judge may not order community supervision, and it is not among the offenses excluded from deferred adjudication under art. 42A.102(b). Given what a felony conviction does in the family case that usually follows, the disposition is worth as much attention as the sentence.
This page is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.