Writ of Habeas Corpus and Writ of Assistance

Sometimes an order is issued which is difficult to enforce. One such order involves a parenting time or child custody order that the other parent ('bad parent') refuses to abide by and hides with the child so that they cannot be found. The parent with the order ('good parent') needs some way to enforce that order in the event that the other parent is discovered and without giving that parent time to disappear again.

In this situation, the good parent is initially less concerned about punishing the bad parent and more concerned about obtaining the child. How can we obtain the child here? First, you should always get an attorney, particularly in matters such as these. These issues are complicated and involve important rights.

The solution I have successfully used is to draft a proposed order for the court to sign in the form of a Writ of Habeas Corpus and Writ of Assistance. Now of course this needs to be preceded by a proper motion asking for the requested relief with the reasons why, and one must be prepared for a disputed hearing just in case the bad parent shows up. However, this article only addresses a particular enforcement document – an order in the form of a writ.

A writ is a special form of a written order or command in the name of the court (or king as it used to be). This somewhat archaic name is usually applied to orders with a long history and to which the name has never changed. Most writs have been abolished and some still exist but are rarely known or used.

A Writ of Habeas Corpus, inherited from English common law, in the oldest sense means an order (writ) to have (habeas) the body (corpus). It is Latin, which is what most of the legal terms were written in long ago in the western world. The practical application of this was a command to have the body brought some place in order to have something done to it. So, it really means that someone must be brought somewhere for some purpose.

The Writ of Habeas Corpus has mostly been used to allege that someone has been wrongfully imprisoned by the authorities. However, there is nothing that prevents it from being used to get relief for someone that is wrongfully detained by a person.

In our case above, the Writ of Habeas Corpus is an order directing that the wrongfully detained child be brought to the good parent for the purpose of complying with the existing child custody order.

A Writ of Assistance is an order directing law enforcement to assist in carrying out a court order. In our case, this writ directs the law enforcement to carry out the Writ of Habeas Corpus.

The end result is that the good parent now can obtain a certified court order directing all law enforcement anywhere (including outside of the state), to obtain the child through force and bring the child to the good parent. So, when the good parent someday either personally or through a private investigator temporarily discovers where the child is, law enforcement can swoop down and get the child without any need for additional court involvement. This is a very powerful child custody enforcement technique.

3 Comments

  1. Stephanie N Silva on June 15, 2017 at 11:48 pm

    Jeff,
    Thank you for your posts, I’ve really appreciated your insight into this extremely confusing situation. But, if you’re able to elaborate further, what if the “good parent” in scenario is actually the parent with an extensive history of domestic violence and child abuse…but has managed to mask it fairly well? What if the “bad parent” is not attempting to hide or even alienate the child, but is merely asking that the twice weekly visitations are supervised by a third party, even the abuser’s parents?? How does this change the situation, outcomes, etc…? Thank you!

    • Jeff on June 16, 2017 at 7:13 pm

      Stephanie,
      Since this article is about enforcement of existing court orders, the scenario you discuss will not really change anything. If there are no existing court orders in the case you describe, then the article does not apply. If there are court orders, then they can be enforced and law enforcement must carry out the enforcement of orders. The remedy as to court orders one does not like is to file a motion to modify them. The sad reality with many custody cases involves a parent who “masks” as you say bad behavior that is very difficult to prove.

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