Habeas Corpus in Child Custody

When child custody disputes arise and you find your child being kept away from you contrary to a court order, Texas Family Law has a powerful remedy on your side: the writ of habeas corpus. This writ is a significant instrument in child custody matters, acting as a legal directive for the child to be brought to the courthouse on a predetermined day. It’s a crucial safeguard to ensure that court orders are followed and your parental rights are upheld. In this blog, we at The Blacknall Firm will break down the complexities of using habeas corpus in child custody disputes, as outlined in Subchapter H of the Texas Family Code.

Where to File a Habeas Corpus Petition

Here’s the deal: you, as the relator (that’s legal lingo for the person asking for the writ of habeas corpus), can choose where to file your petition. According to Section 157.371, it can either be in the court that has been handling your case all along, or in a court that’s able to issue a writ of habeas corpus in the county where your child is currently living.

Making Sure Your Child is Returned

Now let’s say a court order is already in place which dictates who has the right to have the child. In this case, under Section 157.372, the court will only command the return of your child to you if it’s clear that you’re entitled to have them according to the order. The court also checks if the previous order was issued fairly, ensuring that everyone involved had enough notice and a chance to be heard.

When You’ve Given Up Possession Temporarily

If you’ve willingly let your child stay with the other party for six months or more before filing the petition, the court has a couple of options, based on Section 157.373. They might either order your child to be returned to you, or they might decide not to. In the latter case, if there’s an ongoing suit affecting your relationship with your child, the court can issue temporary orders instead.

When Your Child’s Welfare is in Question

Sometimes, urgent concerns regarding your child’s wellbeing come up. Section 157.374 is there for exactly those situations. The court can issue a temporary order that is best for your child, regardless of other factors.

Immunity from Other Civil Processes

While you’re going through a habeas corpus proceeding, Section 157.375 protects you from other civil cases. Your focus should be on getting your child back, and this section ensures you won’t be distracted by other legal matters.

What if There’s No Existing Order?

If there’s no existing court order about who has the right to have the child, Section 157.376 comes into play. The court can order your child to be returned to you if you’re the parent and the other party is not, provided there’s no ongoing suit about your parent-child relationship. If there is such a suit, the court might either order the return of your child or issue temporary orders instead.

Wrapping Up

Navigating the waters of a habeas corpus proceeding can be tricky, but it’s a key part of making sure that court orders about child possession are followed in Texas. It’s all about keeping the process fair, clear, and centered around what’s best for the child.

To discuss retaining our firm for your divorce or child custody case, please schedule a consultation with us today.