How to Use a Writ of Habeas Corpus in Your Custody Case

Posted September 9th, 2016.

Categories: Child Custody, Custody Tips, Family Law.

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When people hear the words “habeas corpus,” they usually think of some kind of legal action involving a prisoner who seeks to be released from detention. Yet a Writ of Habeas Corpus can be issued in a child custody case too, and in some states, it can be used to tremendous advantage for one party or the other.

The words “habeas corpus” literally mean “you have the body.” The idea is to deliver some body to the court for the purposes of making some judicial determination about the placement of that body. A writ of habeas corpus is the formal legal summons that orders the body — or the person in question — to be produced. In the case of a prisoner, the writ orders the prison warden to bring the inmate to court. In the case of a child, the writ orders the custodian of the child (whoever has physical control or supervision over the child) to bring the child before the judge.

Assume, for example, that you are the biological mother or father of a child who has been spending the last year living with his aunt while you were on military leave. The aunt has a temporary custody order. In addition to other legal remedies available to you, your state may permit you to file a Petition for Writ of Habeas Corpus to bring the child before the court, for the purpose of determining whether the child should be returned to your custody now that your military service has concluded.

Or assume, for example, that you are the biological father of a child, but it turns out that another man claims to be the father and has been having visitation rights for the last year. You can file for habeas corpus to bring the child before the court to adjudicate the question of paternity and visitation rights. Habeas corpus may also be proper where it is necessary to remove a child from an adult who is engaging in dangerous behavior or otherwise poses a safety or health risk to the child.

In many states, a writ of habeas corpus is a quicker legal device than filing a Complaint for Custody or some other legal process. The very nature of habeas corpus means that there is some urgent need for quick relief; therefore, the case is likely to be heard faster, and the court is less likely to grant continuances or to allow delays.

Utilizing habeas corpus in a child custody proceeding is an underused technique these days, but it is a valid procedural device that may work in the appropriate case.

If you think your case could benefit from this approach, let me know. I’d be happy to discuss this with you.

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