What is Habeas Corpus in Family Law?
Habeas corpus in family law is a legal action used to secure the return of a child who is being wrongfully withheld from the parent or legal guardian. Unlike criminal law, where habeas corpus is used to challenge unlawful detention, in family law, it is a remedy for enforcing child custody and possession orders.
When Can You File a Habeas Corpus Petition for a Child?
You can file a habeas corpus petition if:
– You have a court order establishing custody or possession rights, and the other parent or party is refusing to comply.
– You are the biological parent without a court order, but the child is being withheld from you by another person.
How Does the Habeas Corpus Process Work in Family Law?
1. A petition is filed with the court, along with a certified copy of the existing custody order (if applicable).
2. The court reviews the petition and may issue an order requiring the withholding party to bring the child to court.
3. A hearing is held, during which the judge determines whether the child should be returned to the petitioner.
What is a Writ of Attachment?
A writ of attachment is an emergency order issued by the court when there is an immediate danger to the child. It authorizes law enforcement to remove the child from the current custodian and deliver them to the court or designated individual.
What Defenses Can Be Raised Against a Habeas Corpus Petition?
A person responding to a habeas corpus petition may argue:
– The child has been voluntarily relinquished to them for over six months.
– A pending SAPCR (Suit Affecting the Parent-Child Relationship) case exists, with temporary orders already in place.
– Returning the child would place them in immediate danger.
What Happens If a Habeas Corpus Petition Is Granted?
If granted, the judge orders the child to be returned to the petitioner. If the responding party refuses to comply, law enforcement may enforce the order.
What Are the Consequences of Ignoring a Habeas Corpus Order?
Failure to comply with a habeas corpus order can result in contempt of court, which may include fines, loss of custody rights, or even jail time.
Should I Contact an Attorney Before Filing a Habeas Corpus Petition?
Yes. Habeas corpus cases involve complex legal procedures, and an attorney can help you determine the best course of action, file necessary documents, and represent you in court.
Need Help with a Habeas Corpus Case?
If you are facing a child custody dispute and need legal assistance, contact our office for a consultation. We can help you understand your rights and guide you through the legal process.
