In some states, where one parent has been granted custody but the other parent or a nonparent has refused to return the child to the custodial parent, the custodial parent may file for a writ of habeas corpus to request that the court order the child be returned.
Writ of Habeas Corpus
A writ of habeas corpus is a court order that requires that the person or agency who has unlawful custody of a child to return the child to the person who has lawful custody. The writ could be directed at a parent who has lawfully or unlawfully taken the child and refused to return the child, at an agency who wrongfully removed the child from the custody of the parent, or at any other person who is keeping the child from the person with lawful custody. In some states, such as Delaware and Georgia, the writ may be used by a spouse to get a court to make a determination as to the proper custody of a child. In other states, such as Maryland, the writ may not be used for that purpose. The federal habeas corpus law may not be used to establish custody, but may, in some limited circumstances, be used to enforce or contest an existing custody order.
Whether or not a writ of habeas corpus may be used to establish custody, it may be used to enforce custody orders or to challenge an existing custody order. Where a state agency has taken custody of a child, usually under a child-in-need-of-assistance proceeding, a parent or other interested person may file for a writ of habeas corpus to contest the right of the agency to keep the child. In circumstances where one parent obtains a custody order in one state, and the other parent obtains a custody order in a different state, a petition for a writ of habeas corpus is sometimes used to challenge the jurisdiction of the second state to grant an award of custody. Where parents cannot care for a child, relatives who compete for custody may also use a writ of habeas corpus to challenge custody.
In family law and divorce cases, parents have at times attempted to use federal habeas corpus laws in federal courts to enforce custody orders. The federal courts lack jurisdiction except in two circumstances. First, the federal courts are available in cases contesting custody of Native American children. Second, federal courts may also be available where the parent seeking return of a child alleges that the parent’s constitutional rights have been violated, such as when parents are living in different states and one parent alleges that the other got or modified custody without providing notice of a hearing on the custody issue.