What are writs of habeas corpus and writs of attachment?

On Behalf of Kevin E. Sralla | June 9, 2024 | Blog

Contentious child custody matters are hard for parents to deal with. The children may be pulled in opposing ways by their parents. In some cases, a parent may stop following the terms of a court order and keep the child even when they should go to the other parent. This can necessitate legal action, which usually includes a writ of habeas corpus and potentially a writ of attachment.

Understanding the purposes and limitations of a writ of habeas corpus and a writ of attachment can be beneficial in some contentious child custody cases. A writ of habeas corpus is issued first and then a writ of attachment is issued if the writ of habeas corpus isn’t effective, or in certain other emergency situations.

Writ of habeas corpus

A writ of habeas corpus in child custody cases requires the individual who has strayed from the terms of a court order to appear before the court and justify why they’re withhold the child from the other parent. It’s used when a parent believes their child is being wrongfully held.

The court can order the person keeping the child to present the child and explain the legal basis for their custody. If the court finds that the parent keeping the child is unlawful, it can order the immediate release of the child to the rightful custodian.

For instance, if one parent refuses to hand the child over to the other after a scheduled visitation, the other parent can seek a writ of habeas corpus to resolve the matter. The court will then examine the facts and enforce the custody arrangement, ensuring the child’s return.

Writ of attachment

A writ of attachment in child custody is a court order that authorizes law enforcement to take physical custody of a child from one parent or guardian and place the child with the other. This writ is typically issued when there is an immediate concern for the child’s safety or if the custodial parent is refusing to comply with a court order.

A writ of attachment can also be used in situations where there is evidence of abuse, neglect or if the custodial parent is attempting to flee with the child. The process involves presenting the court with substantial evidence to demonstrate the necessity of such an order. Once the writ is issued, law enforcement officers are empowered to locate the child and transfer custody as directed by the court.

For example, if a parent is found to be endangering the child’s welfare or violating custody arrangements, the other parent can file a petition for a writ of attachment. Upon approval, authorities will act quickly to ensure the child’s safety. This tool is vital for preventing potential abductions and ensuring compliance with court-ordered custody arrangements.

Regardless of which side of this matter that a person is on, they should seek out guidance about their rights. It’s critical to consider the needs of the child first, but the rights of parents shouldn’t be overlooked.