What is interference with child custody under Texas law?
Texas Penal Code § 25.03 defines interference with child custody as taking or keeping a child away from the person a court has said should have the child. It is a state jail felony — 180 days to 2 years in a state jail facility and a fine up to $10,000 — and the element prosecutors most often struggle to prove is that the accused knew the taking or keeping broke the order.
Interference with child custody is the crime of taking or keeping a child away from the person a court has said should have the child. It is defined in Texas Penal Code § 25.03, which lives in Chapter 25 alongside the family-offense statutes. The conduct it punishes is narrow but serious: a parent who keeps a child past the surrender time set in a possession order, a relative who whisks a child out of the county while a divorce is pending, or someone who removes a child from the United States to put the case beyond a Texas judge's reach.
Under § 25.03(a), a person commits the offense in three ways. First, under (a)(1), the person takes or retains a child younger than 18 knowing that the taking or retention violates the express terms of a judgment or order — including a temporary order — of a court disposing of the child's custody. Second, under (a)(2), a person who has not been awarded custody, knowing a suit for divorce or a custody proceeding has been filed, takes the child out of the geographic area of the counties composing the judicial district (or the county, for a statutory county court) without the court's permission and with intent to deprive the court of authority over the child. Third, under (a)(3), the person takes or retains the child outside the United States with intent to deprive a person entitled to possession of, or access to, the child. Subsection (b) separately reaches a noncustodial parent who, intending to interfere with lawful custody, knowingly entices or persuades the child to leave the custodial parent.
The word that does the heavy lifting in most prosecutions is "knows." Section 25.03(a)(1) is not a strict-liability offense. The State has to prove the accused actually understood that the taking or keeping broke the order — not merely that an order existed somewhere. That single element is where a large share of these cases are won and lost, because custody orders are often amended, the parents frequently make informal swaps, and the surrender language can be genuinely ambiguous. A defense that focuses the jury on what the client actually knew at the moment of the taking is usually stronger than one that argues the order itself was wrong.
- Retention — § 25.03(a)(1)
- Keeping a child past the time the order requires the child to be returned. Most parent prosecutions are retention cases — the parent began the possession period lawfully and did not surrender the child on time. "Retention," not a forcible taking, is what makes the bulk of § 25.03 exchange-dispute cases.
- Express terms of the order — § 25.03(a)(1)
- The specific written language of the custody judgment or order. Section 25.03(a)(1) requires a violation of those express terms, including a temporary order — not a violation of an informal understanding the parents reached by text. Possession orders are full of carve-outs for holidays, summer, and "mutual agreement," and conduct that fits a carve-out is not a violation at all. Dewalt v. State, 307 S.W.3d 437, 453 (Tex. App.—Austin 2010, pet. ref'd).
- Knowledge of the violation — § 6.03
- The accused must know the taking or retention violates the order. This culpable mental state under Penal Code § 6.03 is the element prosecutors most often struggle to prove, and the one defense counsel attacks first. Knowledge can be inferred from presence at the hearing where the order issued, or from signing a later order keeping prior orders in force.
- Penalty — state jail felony under § 12.35
- Section 25.03(d) makes the offense a state jail felony across the board — there is no misdemeanor version. The range is 180 days to 2 years in a state jail facility and a fine up to $10,000. Unlike a third-degree felony, straight state-jail time is generally served day-for-day without the same good-conduct credit, which is why the felony classification carries real weight even at the low end.
The structural simplicity of § 25.03 — one core mens rea on the (a)(1) prong, three alternative ways to commit the offense, and two built-in statutory defenses — masks how fact-bound most contested prosecutions are. The State frequently overreaches in one of two ways: charging a knowing violation where the order was ambiguous or the parents had a course of informal swaps, or framing a custody dispute as an abduction to push the case toward kidnapping. Each is a fact question, and each gives the defense room to argue for acquittal, for diversion or deferred adjudication, or for dismissal where an essential element is missing.
Is this a criminal charge or a family-law dispute?
It is both, running on two tracks at once. The civil track is the custody case in family court; the criminal track is a § 25.03 prosecution brought by the district attorney, where the punishment is jail and a felony record, not a contempt finding. A parent can face a family-court enforcement motion and a criminal charge over the same weekend exchange.
It is both, running on two tracks at once, and confusing them is the single biggest mistake people make. The civil track is the custody case in family court — conservatorship, possession schedules, and enforcement motions under the Texas Family Code. The criminal track is a § 25.03 prosecution brought by the district attorney, where the punishment is jail and a felony record, not a contempt finding. A parent can face a family-court enforcement motion and a criminal charge over the very same weekend exchange.
This page is squarely about the criminal charge and how to defend it. If you are looking for help with conservatorship, a possession schedule, or a custody modification, that is family-law work — see our overview for Texas child custody instead. The two practice areas overlap, and the smartest defense often coordinates with the family case, but the stakes and the rules are different. A family judge can hold you in contempt; a criminal conviction under § 25.03 is a state jail felony that follows you for life. When both are pending, statements made in the family proceeding can surface in the criminal one, so the order in which you fight them matters.
What are the penalties for interference with child custody?
Section 25.03(d) makes interference with child custody a state jail felony across the board — there is no misdemeanor version. A state jail felony carries 180 days to 2 years of confinement in a state jail facility and a fine up to $10,000, generally served day-for-day.
Section 25.03(d) makes interference with child custody a state jail felony across the board — there is no misdemeanor version. A state jail felony carries 180 days to 2 years of confinement in a state jail facility and a fine up to $10,000. Unlike a third-degree felony, straight state-jail time is generally served day-for-day, without the same good-conduct credit, which is why the felony classification carries real weight even at the low end of the range.
| Offense | Statute | Classification | Confinement | Max fine |
|---|---|---|---|---|
| Interference with child custody | § 25.03 | State jail felony | 180 days – 2 years | $10,000 |
| Agreement to abduct from custody | § 25.031 | State jail felony | 180 days – 2 years | $10,000 |
| Enticing a child | § 25.04 | Class B misdemeanor (state jail felony with intent to commit a felony) | Up to 180 days (or 180 days – 2 years) | $2,000 / $10,000 |
| Aggravated kidnapping | § 20.04 | First-degree felony | 5 – 99 years or life | $10,000 |
The table shows why charge selection is everything in these cases. The same family conflict can be charged as a state jail felony under § 25.03 or, if a prosecutor frames the facts as an abduction, as kidnapping. Texas courts have been clear that interference with child custody is not a lesser-included offense of kidnapping, because each requires proof the other does not. See Dewalt v. State, 307 S.W.3d 437, 454 (Tex. App.—Austin 2010, pet. ref'd) (the State "could prove kidnapping without proving … the mens rea required by paragraph (a) (knowing that the taking or retention violates the express terms of a judgment or order disposing of the child's custody)"). For a defendant, that distinction is leverage: pushing a case toward the § 25.03 framing — where the relationship and the custody order are front and center — is often the difference between a state jail felony and a violent first-degree exposure.
Elements the State must prove
To convict under the most common prong, § 25.03(a)(1), the State must prove a taking or retention, of a child younger than 18, in violation of the express terms of a custody order, with knowledge of the violation — each beyond a reasonable doubt, and each a separate target for the defense.
To convict under the most common prong, § 25.03(a)(1), the State must prove every element beyond a reasonable doubt. Each element is a separate target for the defense:
- A taking or retention. The accused either took the child or kept (retained) the child. "Retention" is what makes most parent cases — the parent had lawful possession to begin the period and simply did not return the child on time.
- A child younger than 18. The statute protects children under 18. A child who has reached 18, or who is emancipated, falls outside § 25.03(a)(1).
- A judgment or order disposing of custody. There must be a court order that allocates custody or possession. This includes a temporary order, not just a final decree. See Dewalt, 307 S.W.3d at 453.
- Violation of the order's express terms. The taking or retention must break the express terms — the specific words — of the order. An informal understanding the parents reached by text is not an "express term" of the court's order, which opens room to argue the conduct did not violate the order at all.
- Knowledge of the violation. The accused must know the taking or retention violates the order. This culpable mental state under Penal Code § 6.03 is the element prosecutors most often struggle to prove, and the one defense counsel attacks first.
The (a)(2) and (a)(3) prongs swap in different elements. Under (a)(2) the State must prove a pending suit, removal from the judicial district or county, the absence of court permission, and a specific intent to deprive the court of authority over the child. Under (a)(3) the State must prove the child was taken or retained outside the United States with intent to deprive a person of possession or access. Each added element is another place the proof can fail.
How do prosecutors prove a § 25.03 case?
Because the offense hinges on a mental state, prosecutors build these cases on documents and timing rather than eyewitnesses — the custody order, the messaging record, and, under Rule 404(b), the parent's prior violations of the same order to prove intent and absence of mistake.
Because the offense hinges on a mental state, prosecutors build these cases on documents and timing rather than eyewitnesses. The custody order itself is exhibit one, and the State will work to show the accused both received it and understood it. Texas courts have held that knowledge of the order can be inferred from the defendant's presence at the hearing where it was issued, or from a signature approving the form of a later order that kept the earlier one in force. See Peinado v. State, No. 05-14-00418-CR, 2015 WL 4914951, at *4 (Tex. App.—Dallas Aug. 19, 2015, no pet.) (mem. op., not designated for publication) (a rational juror could find the defendant "had knowledge that taking and retaining [the child] violated" the order where she appeared at the hearing and signed a later order keeping prior orders in force).
Prosecutors also lean on a pattern. Under Rule 404(b), the State may introduce a parent's prior violations of the same custody order to prove intent, knowledge of the lawful possession boundaries, and the absence of mistake. See Peinado, 2015 WL 4914951, at *9. That is why a string of late returns or earlier denied exchanges can be more damaging than the single charged incident — it lets the State argue the conduct was deliberate, not a misunderstanding. The defense answer is to attack the inference: show the prior episodes were resolved by agreement, occurred under a different order, or reflected confusion that cuts against, not toward, a knowing violation.
The State's other staple is the messaging record. Texts, emails, and app logs showing the accused refusing to return the child, announcing an intent to leave, or acknowledging the order's terms are powerful intent evidence. Those same records cut both ways, however — messages showing the other parent agreed to a schedule change, or showing the accused trying to arrange the return, can dismantle the knowledge element. Securing and reading the full thread, not the screenshots the complaining parent selected, is a routine first step.
County-by-county practice notes
A § 25.03 case is a felony, filed by indictment or information and handled in the felony courts of the county where the offense occurred. The mechanics — and how the criminal case interacts with the underlying family-court order — differ across Collin, Dallas, Denton, and Tarrant counties.
A § 25.03 case is a felony, so it is filed by indictment or information and handled in the felony courts of the county where the offense occurred. The mechanics differ across the DFW metroplex.
Collin County. Felony interference cases are heard in the district courts at the Collin County Courthouse (Russell A. Steindam Courts Building) in McKinney. Because Collin County is also where the firm's Frisco office sits, exchange disputes from Frisco, Plano, and McKinney commonly land here. The custody order and the family case will typically be in the same county's district courts, which makes coordinating the criminal and civil tracks more practical.
Dallas County. Felony matters are filed into the criminal district courts at the Frank Crowley Courts Building in Dallas. Dallas County's large family-court system means the underlying possession order may have a long procedural history that the defense can mine for ambiguity and for proof of informal swaps.
Denton County. Cases are heard at the Denton County Courts Building (and the associated criminal courts complex) in Denton. Lewisville and other southern-county exchanges frequently generate these disputes given the proximity to Collin County lines, which can raise genuine questions under the (a)(2) judicial-district prong.
Tarrant County. Felony cases are handled at the Tim Curry Criminal Justice Center in Fort Worth. As in the other counties, the criminal case will reference a family-court order that may be venued elsewhere, so confirming which order controlled on the date of the alleged offense is an early task.
These are general observations about where cases are heard and how the two tracks interact — not predictions about any prosecutor's charging policy or any judge's view of a particular case. The firm has one office, at 5899 Preston Rd, Suite 101 in Frisco, and defends cases throughout these counties from there.
Collateral consequences
A state jail felony conviction reaches well past the courtroom — state and federal firearm disabilities, immigration exposure for non-citizens, licensing complications, and ammunition the other parent will use to seek a possession modification in the family case.
A state jail felony conviction reaches well past the courtroom. Firearms: a felony conviction triggers state and federal firearm disabilities, including Penal Code § 46.04 and 18 U.S.C. § 922(g). Immigration: for a non-citizen, a § 25.03 conviction can carry removal or admissibility consequences and must be evaluated by counsel before any plea. Employment and licensing: a felony record can bar or complicate professional licenses, including teaching certificates and other roles that screen for offenses against children. The custody case itself: a criminal conviction for interfering with custody is exactly the kind of evidence the other parent will use in family court to seek a possession modification, so the criminal outcome can reverberate into reduced time with the child. Each of these consequences is a reason to fight the charge rather than accept a quick plea that looks minor on paper.
Can an interference with child custody charge be dismissed or expunged?
Dismissal is a realistic goal in the right case, and what happens to your record depends on the outcome. A dismissal or acquittal can support an expunction under Chapter 55; a final conviction for a state jail felony cannot be expunged, which is why a "quick plea" deserves caution.
Yes — dismissal is a realistic goal in the right case, and what happens to your record afterward depends on the outcome. Because § 25.03 turns on a knowing violation, a charge built on an ambiguous order, an agreed swap, or a missing element can be dismissed before trial or won at trial. When a case ends in dismissal or acquittal, an expunction under Code of Criminal Procedure Chapter 55 can wipe the arrest from your record. If the case is resolved by deferred adjudication, an order of nondisclosure (record sealing) may be available for some offenses after the conditions are completed, though eligibility is offense-specific and not automatic.
The hard line is conviction. A final conviction for a state jail felony cannot be expunged, and that is a major reason to treat even a "quick plea" with caution. Diversion programs and deferred adjudication — where the judge does not enter a conviction if the conditions are met — preserve far more options down the road than a straight guilty plea. Whether any of these paths fits should be evaluated against the specific facts and the client's prior history.
L and L Law Group represents clients facing § 25.03 interference with child custody charges across Collin, Dallas, Denton, and Tarrant counties. Co-founding partners Reggie London and Njeri London handle both the criminal-defense and collateral-consequence components of these cases — defending the criminal charge through dismissal, negotiated outcome, or trial, coordinating with the parallel family-court proceeding, and advising non-citizen clients on the immigration implications before any plea. Free initial consultations are available; contact the firm at (972) 370-5060 or info@landllawgroup.com to schedule.
