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What Is Habeas Corpus?

what is habeas corpus?

In a contested custody case, whether or not an actual lawsuit is currently pending, parents and others often disagree on who should have actual possession of a child.  A "habeas corpus" proceeding is a lawsuit that requests the Court to order the return of a child from a person wrongfully or unlawfully holding the child to a person who is authorized to have possession of the child.  There are essentially two types of habeas proceedings in the family law context:  (1) a parent seeking to obtain possession of the child being held by a non-parent; and (2) one parent seeking to obtain possession of a child being held by the other parent in violation of a court order that sets forth the possession rights of the parents.


The person seeking possession of the child files an Application and related documents with the district clerk's office.  The Judge then signs an Order for Issuance of Writ, and the clerk then signs the Writ of Habeas Corpus.  These steps are completed prior to providing any notice to the opposing party.  The Writ of Habeas Corpus, once served upon the opposing party, requires the opposing party to appear in Court, with the child, on the designated date. At the hearing, the Judge determines, based on evidence presented by both parties, who is lawfully entitled to possession.  Other issues, such as which party should have custody, what is in the best interest of the child, where the child would like to be, etc. are not relevant in a habeas corpus proceeding.  

If the Judge determines that the applicant is entitled to possession, the Judge will sign an Order requiring the opposing party to hand the child over immediately. Occasionally, the bailiff of the Court must get involved to enforce the Order and require that the child safely leave the courthouse with the Applicant rather than the opposing party.  It is also common for the Judge to order the opposing party to reimburse the legal fees and out-of-pocket expenses incurred by the Applicant in pursuing the habeas corpus.

If you're involved in a dispute over possession of a child, you don't have to go through the process alone.  Individuals need quality legal representation to enforce their rights to possession of children.  Christiansen Law Firm partners with individuals going through child possession issues.  The family law attorneys at Christiansen Law Firm have extensive experience handling habeas corpus matters in family courts. Contact the attorneys at Christiansen Law Firm in Houston or San Antonio to schedule a free consultation.



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