What are Writs of Habeas Corpus in Family Law Cases in New York?

Kids SwimmingHabeas Corpus is another Latin term, used in legal proceedings which means “You have the body”. This blog entry will refer to the use of the term in family law proceedings which, of course, has a different application than in criminal law proceedings which also make use of Writs of Habeas Corpus. Usually, the writ itself is an order from the Family Court or Supreme Court in New York directing someone that has a child to bring that child before the court on a specified date and time. The underlying premise necessary to support an application for a Writ of Habeas Corpus is that the child is being wrongfully held by another. This wrongful detention could be in violation of someone’s custody or parenting time order. New York or Long Island Family Law Lawyers can use Writs of Habeas Corpus as a tool to help their clients in child custody and parenting time disputes.

At times, the Writ might include a temporary custody order, but usually the Writ simply directs the production of the child. Further proceedings can ensue in the court after the production date regarding custody, parenting time, and perhaps contempt. If the person does not comply with the Writ, they will be in contempt and could face the wrath of the court which might include relinquishment of custody, incarceration, and likely a warrant for their arrest for failure to come to obey a court order. Sometimes, once the child is brought before the court, the court might direct the child to be given to the petitioner as they are entitled to custody or to exercise their parenting time. The Writ of Habeas Corpus proceedings often end on the date the child is brought to the court as the Writ is considered satisfied. At other times further proceedings are necessary.

So, what needs to be included in an application for a Writ of Habeas Corpus? The supporting papers should first set forth the relationship of the Petitioner to the children, such as Father, Mother, grandparent, or otherwise. Next, the application should detail that the subject children are in the physical custody of the Respondent and the time since that has been the situation. In cases where the Petitioner legally is entitled to custody, the application should set forth how the Respondent improperly and unlawfully removed or withheld the child from the Petitioner. This might mean that another parent or person took the children without authority to do so or refused to return the children after their allotted parenting time or visitation period. In cases where the Petitioner is not the residential custodial parent of the child(ren), the allegations to be detailed in the petition usually will allege that the Petitioner was improperly denied their parenting or visitation time.

If paternity of the child(ren) was established, the father of the child(ren) should be identified and how paternity was established such as because of the marriage presumption of legitimacy of a child, an order of filiation or an acknowledgement of paternity. The court would ideally like the paternity document to be attached to the petition. The addresses at which the children resided for the past five years should be set forth, along with the dates, who they resided with and the current addresses of the people with whom they resided. If custody and visitation (parenting time) has been legally established or agreed upon, the court will want the method identified. This custody and parenting time document should be submitted as well whether it is a: custody order; stipulation; Judgment of Divorce; Separation Agreement; or a Custody or Guardianship Agreement that was confirmed by a court. If the Petitioner or children has been or is involved with other litigation concerning the children, the court will want this set forth. Any Orders of Protection that have been issued concerning the children or the parties should be disclosed. Finally, and perhaps most importantly, the applicant needs to tell the court what it is they would like the court to do such as to return custody of the children or to order visitation.

Both the Family Court and Supreme Court have the authority to issues Writs of Habeas Corpus for both married and unmarried people. Writs of Habeas Corpus may be used to initiate a child custody proceeding in the Supreme Court for unmarried people. Married people, on the other hand, have access to use the Supreme Court for the resolution of custody and parenting time issues in the context of a divorce or separation case so would not necessarily need to use a Writ of Habeas Corpus in the Supreme Court to determine custody and parenting time cases. If equitable circumstances exist to suggest that the court should get involved, grandparents or siblings can use a Writ of Habeas Corpus to have a child, that resides in New York, brought before the court in regards to custody or visitation.

I go into further details about custody, family law, divorce, grandparents’ and other people’s rights in other blog entries and pages on our website. Hopefully this article has provided a basic understanding about Writs of Habeas Corpus in a family law context in New York. Please click around the site and blog for more information. Remember to call about your free initial consultation. It would be our pleasure to speak with you about it.