habeas corpus

Understanding Habeas Corpus in a Child Custody Case in Texas


What do you need to know about Habeas Corpus in a Child Custody Case?

If you and your spouse have been divorced for quite a while, you are likely to enjoy split custody privileges and have been co-parenting your child equally. If you haven’t encountered any problems, it is safe to say that you and your ex-spouse have probably followed the court’s final decree to the letter. Since you have not encountered any issues, it would be unimaginable for your spouse to not return your child as scheduled, out of the blue.


However, it can happen. Let’s say it happened, and your spouse is refusing to drop off your child as scheduled. You communicate with him or her and it turns out that your spouse isn’t planning to return your child for a couple of days. Of course, you’re angry about it, but more than that, you’re worried about your child. What about your child’s clothes? What about his or her schoolwork? Will your child’s medications be given properly?


Even under the very best environment, co-parenting can be tough. You and your spouse might want to follow the final divorce decree properly, but you could also want to have more time with your child than what is decided by the court. However, a parent just cannot do what he or she wants when there is a court order that regulates your time with your child.


When to Use Habeas Corpus in a Child Custody Case


Habeas Corpus is an option available to you if the other parent refuses to return your child back to you. This is an option that can be taken after taking look at your divorce decree and child custody order. These court orders are the guidelines for you and your co-parent regarding your rights, duties and time with your child. Since these orders are signed by you and your co-parent, this signifies that you have read and acknowledged such guidelines. Violating the terms of these orders means a legal violation.


When your ex refuses to return your child to you, despite the guidelines set by the court, the quickest and easiest way to resolve the issue is by communication. This will save you both a lot of time and money. However, if your ex is being stubborn, you might have no choice but to go for the habeas corpus option. Try to call your ex first though. Hearing your voice might cause him or her to think twice about seriously violating the court orders.


When Your Ex Refuses to Cooperate

If your ex adamantly refuses to cooperate, you can speak with a family law lawyer in order to find other options to get your child back. It is likely that your attorney will initiate court proceedings if your ex really refuses to return your child no matter how much you talk to him or her. Your attorney will first confirm the situation and the terms of your court order. There are times when people misunderstand the court order, after all. If there are no misunderstandings and what is happening is indeed a violation of the court order, you can discuss with your attorney about the various legal options that you have. Of course, it’s best if you know your rights early and understands the court orders early. It means you can act early. Throughout the entire ordeal, the most important thing to keep in mind is you should not jump to conclusions.



Understanding Habeas Corpus


Fortunately, habeas corpus isn’t as difficult to understand as it is to pronounce. If you are the primary conservator of your child, initiating a writ of habeas corpus is one of your options to get the other parent to return your child to you.

You have to make sure that you have a valid order that states that you have the right to have possession of the child when you say you do. In order to initiate habeas corpus in a child custody case, you will have to file a petition for it in the same court where the court order regarding your possession of your child was signed and released. The judge will check if everything matches legally. If it does, the judge will order the other parent to return the child. It’s not something the other parent can argue with. He or she will have to comply with the judge’s order whether he or she likes it or not. The judge will enforce the order as fast and as efficiently as possible.


Initiating a habeas corpus in a child custody case when it’s a matter of your ex violating the court order will be your best bet if your ex-spouse refuses to communicate reasonably. It might be daunting for you if you have never tried it before since you will really have to check and recheck the terms in the original order. The assistance of a trusted lawyer would come in handy, so consult your lawyer first before filing a petition for habeas corpus in a child custody case.


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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 timothy.hutton@austintexaslegal.com

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