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

May 13, 2018

There are a number of rights Americans enjoy that are recognized in the Constitution. Among these rights are a speedy trial if arrested and charged, the right to counsel, the right to be secure from unreasonable searches and the right to due process.

Many of these long-standing provisions of U.S. law descend from their equivalents in British common law and the western traditions of individual rights, liberty and democracy. Among these ancestors of the United States Constitution and our legal traditions, there is one legal principle that stands above the others, for it is the one upon which most of the other rights of the accused are based, and that is Habeus Corpus.

The name Habeus Corpus is Latin for “to have the body.” It is an order, often issued by counsel, but enforced by the court if necessary, to produce an imprisoned person in order to determine if their custody is legal. Without Habeus Corpus, a person could be arrested and imprisoned incommunicado and be denied their fundamental rights under the law.

What many people likely don’t know is that Habeus Corpus is not necessarily limited to criminal cases. In fact, its use in civil cases is not only common, but usually encountered in family court disputes over the custody of minor children.

Mandate of the Court

Legal proceedings in civil court are no less formal and no less complex than those taking place in a criminal trial. The only real difference in a criminal case is the fact the “plaintiff” so to speak, is the state itself, representing its own citizens in an attempt to impose criminal sanctions on a defendant.

In civil court, and especially family court, the plaintiff is far more often an individual private citizen who has retained counsel to represent them in divorce or custodial matters. Counsel for either the plaintiff or the defense still has access to the same legal tools as any attorney in a criminal case, and also has some leeway given the fact that a defendant in civil court has fewer options when it comes to things like rights against self-incrimination, search and seizure and the like.

When a civil litigant files a habeus motion, it has the same force of law as at any other time. It starts out as a request by one of the parties and eventually becomes an order of the court itself.

Wrongful Detention

In many family custody disputes, one of the litigants will allege the other is unfairly or even criminally detaining the children either in violation of existing court orders or state law. In most cases, these disputes have far more to do with bickering between emotional people than they do with willful violations of the law. That said, family law attorneys routinely use the Habeus motion to bring the dispute before the court so orders can either be rectified, clarified or enforced at the request of one or the other litigant.

What a Habeus motion will do above all else is make clear the party so ordered must cause the child or children in question to appear before the court. Violating the order very often results in either sanctions or even criminal charges.

What a Habeus Motion Includes

A motion is simply a request by a party to the case for the court to consider their request. For example, in a criminal trial, a defense attorney might file a motion to dismiss the case on the grounds the prosecution has failed to prove the charge beyond a reasonable doubt. In such a case, there is no point in presenting a defense, because the prosecution hasn’t met their burden.

In a civil case, when one or the other party files a Habeus motion, it usually includes a great deal of information. If the motion is requesting the court compel the production of a child, for example, the motion should include the name and relationship of the petitioner to the child. It should also advise the court regarding any existing orders that are or were in effect at the time the motion was originally filed. Family courts as a rule uphold existing court orders even if they were issued in other jurisdictions.

A Habeus motion can also include any allegations lodged by the petitioner or respondent regarding violations of those court orders or any laws that may have been applicable at the time of any alleged incidents. For example, a child may have been taken out of the jurisdiction without permission. This can be considered a simple violation of a court order. It can also rise to the level of custodial interference, which is a criminal act.

In order for a court to rule competently on any motion before it, there must be enough information in the filings to get a clear understanding of the situation. Occasionally a court presented with a Habeus motion is new to the case, so there must be some background information available so the judge as a basis for their eventual ruling.

Courts with Jurisdiction

Most courts have the authority to issue a Habeus Corpus writ regardless of the disposition of the current case or the context in which the original petition was filed. This is true for both family courts and Superior Courts in nearly every jurisdiction in the United States. Federal courts occasionally have different rules regarding both the filing of motions and any subsequent orders. This is because there is no federal “family” court per se. Family court cases are heard at the state level as in New York.

The Habeus Corpus motion is one of the most powerful and dramatic in all jurisprudence. It is treated with considerable reverence and all courts under the Constitution’s jurisdiction respect its place in our system of laws. In family court, it is one of the chief means of protecting the interests of children who may be powerless to advocate on their own behalf. For this reason and others Habeus Corpus is one of our most sacred legal traditions.

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