Writ Of Habeas Corpus

Writ Of Habeas Corpus

Coming up with a child custody agreement that a couple that is undergoing a divorce can agree with is not easy. These parties can reach an agreement on that through negotiation, or go to court if the negotiations do not succeed. A judge will issue orders related to the custody of the child if the case heads to court, which in most cases is split 50/50 between the parents. The order will show visitation schedules that specify visitations days and time and so on. But there have been cases where a parent refuses to return a child to the other parent. Going through this can be very frustrating because you and your spouse agreed to the terms of your divorce decree. 

What Is A Habeas Corpus?

A parent with a legal right to possession of a child can use a writ of habeas corpus to regain possession of a child from a person that is retaining a child illegally. In fact, anyone with a court order that gives them a right to possession of a child can file a writ of habeas corpus. You can find a more detailed explanation of what it means under Chapter 157 of the Texas Family Code.

How To Get Your Child Back

You can file a lawsuit called a Petition for Writ Habeas Corpus, which if granted will force the person that has the child to appear in court with the child. However, before you file this petition, consult the most recent orders from the court on your case. Look at the rights and duties that are outlined in the order to find the specific time and date that other parent needs to return the child. If you find that has not complied with the orders, call your attorney to advice on the next step to take and what pleading you should file. Remember that if the other parent has not complied with terms of your divorce degree, then the parent is in violation of the court’s orders.

 The court will also look at that order if you file a petition to ensure that you have the right for the possession of your child at that time or period you specified in your petition. If the judge determines that you are correct, then the judge will order that your child be returned to you. But if there is no court order governing the right to possession of the child, the court will do the following in a habeas corpus proceeding:

  • Compel the return of the child if a parent and a non-parent have the right of possession, and no lawsuit that affects the parent-child relationship has been filed
  • If a suit that affects the parent-child relationship has been filed and is ongoing at the same time as the habeas corpus proceeding, the judge can compel the return of the child or issue a temporary order 

Your family law attorney will answer any of your questions about habeas corpus proceeding, and explain to you the options you have in your case.