Summer is here. That means most families with joint custody have carefully planned their summer activities and scheduled their vacations. July is generally the month where most non-custodial parents have possession of their children for a full month. But what happens if the custodial parent refuses to surrender the child on July 1st as ordered by the court,
threatening much-anticipated summer plans?

If you are currently entitled to the possession of your child, you can file a Petition for Writ of Habeas Corpus (Latin for “produce the body”) that commands the other parent to return your child. This petition can do one of two things:

Issue a writ of habeas corpus. This commands the parent in possession of the child to appear in court at a certain date and time with the child. The court will then hold a hearing to
determine which parent is currently entitled to possession of that child.

  1. Issue a writ of attachment. This commands a sheriff or constable to take
    possession of the child and deliver the child to a designated place. Attachment is a harsh remedy and can be traumatic for the child. This should be used in cases where the child is in danger.
  2. After the Petition for Writ of Habeas Corpus is filed, the court will generally
    conduct an “ex parte” review of the petition and its allegations to determine whether or not to proceed. The opposing party will not yet have chance to present their side. The habeas proceeding necessarily entails a hearing—the other parent will have a chance to refute the non-custodial parent’s claims when they bring the child to court. But with a writ of attachment, a hearing is not guaranteed; sometimes, the court may
    summarily command turnover of the child without giving the opposing parent a chance to argue their side.

To succeed, the petitioner must show that the current custody order is valid, that he or she is currently entitled to possession of the child, and that the other parent is restraining the child. That’s it.

The most common defenses to a habeas proceeding are 1) relinquishment of possession (the parents agreed to a different schedule) or 2) the non-custodial parent’s environment presents a “serious, immediate question of harm” (such as abuse). Relinquishment may be hard to prove for summer periods, but proving either defense makes returning the child discretionary, instead of mandatory. The court should not take the “best interest of the child” into account in this type of proceeding.

A Petition for Writ of Habeas Corpus can be filed in the court of continuing jurisdiction (the court that issued the underlying custody order) or in the county where the child is being
restrained. Counties have different personalities and different definitions of what constitutes harm. It is prudent to consult with an attorney in each county (or better, an attorney familiar with both counties) before proceeding.

A Petition for Writ of Habeas Corpus can be coupled with other proceedings, and it can be paired with a Motion for Enforcement to hold the restraining parent in contempt of court. If you have any questions about a habeas proceeding or are being denied your summer
possession, call the attorneys at Gardner & Smith.