Navigating Child Custody Disputes in Texas: A Comprehensive Guide to Writs of Habeas Corpus and Attachment


Child custody disputes can be emotionally charged and legally complex. In the state of Texas, when a parent faces challenges in enforcing their custody rights or needs immediate relief, two legal remedies come into play: the Writ of Habeas Corpus and the Writ of Attachment. This comprehensive guide aims to provide a detailed understanding of these writs, referencing relevant sections of the Texas Family Code and case law. We will explore the legal steps involved, including filing, serving the respondent, and presenting evidence crucial for the court’s determination.

1. The Legal Landscape:

Before delving into the specifics of writs of Habeas Corpus and Attachment, it’s essential to understand the legal foundation governing child custody matters in Texas. The Texas Family Code serves as the primary source of law, and key provisions, such as those related to possession and access (Chapter 153) and enforcement mechanisms (Chapter 157), are critical in this context.

2. Writ of Habeas Corpus:

The Writ of Habeas Corpus is a legal tool that allows a person to seek relief from unlawful restraint. In the context of child custody, it is often employed when a parent believes that the other parent is wrongfully denying them possession of the child.

a. Legal Basis (Texas Family Code § 157.371):

  • Section 157.371 of the Texas Family Code outlines the legal basis for filing a Writ of Habeas Corpus. It empowers the court to issue the writ to enforce possession or access to a child.

b. Grounds for Issuance:

  • The court may issue a Writ of Habeas Corpus if there is evidence that the possession or access is being unlawfully denied or restricted, and if immediate relief is necessary.

c. Filing the Writ:

  • To initiate the process, a parent must file a petition with the court, specifically requesting the issuance of a Writ of Habeas Corpus. The petition should detail the circumstances surrounding the denial of possession or access and the urgency of the situation.

d. Service of the Writ:

  • Once the court grants the writ, it must be served on the person in possession of the child. Law enforcement or another authorized person typically carries out the service.

e. Court Hearing:

  • A hearing is promptly scheduled to determine the validity of the writ. Both parties present their evidence, and the court makes a swift decision based on the best interests of the child.

f. Contempt Proceedings:

  • If the court finds that the denial of possession was willful and intentional, it may initiate contempt proceedings against the non-compliant parent.

3. Writ of Attachment:

The Writ of Attachment is another legal remedy available to a parent facing obstacles in enforcing their child custody rights. This writ is sought when there is a concern that the child might be removed from the jurisdiction or when there’s a risk of harm.

a. Legal Basis (Texas Family Code § 157.376):

  • Section 157.376 of the Texas Family Code authorizes the court to issue a Writ of Attachment to secure the possession of a child.

b. Grounds for Issuance:

  • The court may issue a Writ of Attachment if there is evidence that the child is at risk of being removed from the state or if the child’s safety is jeopardized.

c. Filing the Writ:

  • Similar to the Writ of Habeas Corpus, a parent initiates the process by filing a petition with the court, specifically seeking the issuance of a Writ of Attachment.

d. Service of the Writ:

  • Once granted, the writ is served on the person in possession of the child, preventing them from removing the child from the jurisdiction until a court hearing is held.

e. Court Hearing:

  • A hearing is promptly scheduled to assess the circumstances surrounding the request for a Writ of Attachment. The court evaluates the evidence presented and makes a determination based on the best interests of the child.

f. Contempt Proceedings:

  • If the court finds that the removal of the child was willful and intentional, it may initiate contempt proceedings against the non-compliant parent.

4. Legal Steps for Filing and Serving:

a. Consultation with an Attorney:

  • Before filing a Writ of Habeas Corpus or Attachment, it is advisable for the parent to consult with an experienced family law attorney. An attorney can provide guidance on the specific circumstances of the case, the legal basis for the writ, and the likelihood of success.

b. Filing the Petition:

  • The parent, with the assistance of their attorney, files a petition with the appropriate court. The petition outlines the facts and circumstances justifying the need for the writ and requests the court’s intervention.

c. Service of the Writ:

  • The court issues the writ, and it must be promptly served on the person against whom the writ is sought. Law enforcement or another authorized individual typically carries out the service.

d. Respondent’s Response:

  • The person served with the writ has the opportunity to respond. They may contest the writ, providing their version of events and reasons for their actions.

e. Court Hearing:

  • The court schedules a hearing to evaluate the evidence and arguments presented by both parties. The primary consideration is the best interests of the child.

f. Issuance of Orders:

  • Based on the court’s determination, orders are issued to enforce possession or access (Writ of Habeas Corpus) or to secure the child’s presence within the jurisdiction (Writ of Attachment).

5. Types of Evidence:

Evidence plays a pivotal role in Writs of Habeas Corpus and Attachment proceedings. The following types of evidence are crucial in presenting a compelling case:

a. Documentation of Denial:

  • Any documentation that establishes the denial of possession or access, such as text messages, emails, or written communication, can be instrumental.

b. Witness Testimony:

  • Witnesses who can testify to the circumstances surrounding the denial of possession or any risk of harm to the child can provide crucial evidence.

c. Affidavits:

  • Sworn affidavits from the involved parties, witnesses, or professionals (such as therapists or social workers) can present a detailed account of the situation.

d. Records of Threats or Safety Concerns:

  • Any records of threats made by the other parent or concerns about the child’s safety should be documented and presented as evidence.

e. Child’s Preferences (if age-appropriate):

  • If the child is of sufficient age and maturity, their expressed preferences may be considered by the court.

f. Expert Testimony:

  • Expert testimony from professionals in child psychology, family dynamics, or related fields can provide the court with a comprehensive understanding of the situation.

g. Documentation of Violations of Prior Orders:

  • If there is a history of prior violations of custody orders, presenting documentation of these instances strengthens the case for the writ.

6. Conclusion:

Navigating child custody disputes in Texas involves a nuanced understanding of legal remedies such as Writs of Habeas Corpus and Attachment. Parents seeking relief must carefully follow the legal steps outlined in the Texas Family Code, present compelling evidence, and prioritize the best interests of the child.

It is crucial for parents facing challenges in enforcing their custody rights to consult with experienced family law attorneys. Attorneys can guide them through the legal process, ensure compliance with legal requirements, and advocate for the best interests of their clients and the children involved.

As family law is dynamic, it’s important to consult the most recent legal resources or seek advice from legal professionals for the latest information.

The following two tabs change content below.
Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at attorney@okohlaw.us

Leave a comment

Your email address will not be published. Required fields are marked *