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

January 4, 2018

While there are different types of law, such as the differences between criminal, civil, and family law, many of the same terms are used. While the wording may sound the same, the definitions vary slightly, depending upon how they’re applied in the different areas of law. One such phrase is a writ of habeas corpus, which is used in criminal law and in family law. While criminal law requires that an agency or individual produce a person being held in custody to appear before the court, a writ of habeas corpus in New York family law differs slightly by requesting that a child be brought before the court.
When Will a New York Court Issue a Writ of Habeas Corpus?
In the state of New York, a writ of habeas corpus can be issued by either Family Court of the state Supreme Court. Typically, a judge will grant this order where a child is being held illegally by another, such as one parent withholding court-ordered visitation rights from the other. A writ of habeas corpus forces the parent, or other individual, to comply with visitation or co-parenting requirements.
In most cases, the writ is pretty straightforward, only requiring that the child be brought before the court. However, in special cases, the judge may add certain stipulations to the writ. For example, the writ may grant temporary custody to the other parent or to another individual. Failure to comply with a writ of habeas corpus can carry the same consequences as violating any other court mandate. The offending individual may be subjected to fines and incarceration. Deliberately refusing to comply with the writ may also affect that parent’s custody or visitation privileges.
Once the child appears before the court, the writ is usually considered complete. However, depending on the terms of the court order, it may take further proceedings to fully satisfy the writ. As each case is unique, the exact terms of the writ are established based upon the circumstances of that particular situation.
What Details Does a Writ of Habeas Corpus Include?
One of the most essential aspects of this type of writ is to establish the relationship of the petitioner to the child or children in question. For instance, it would identify that the person requesting the writ is the mother of the child, or that person may be the father, a grandparent, or an aunt. Whatever the relationship, it must be clearly defined in the writ.
The writ must also provide details as to the situation of the respondent’s physical custody of the children named in the document. This means the petitioner must provide concise details as to how long the children have been in the respondent’s custody. If the respondent does have legal custody of the children, the document must also explain the circumstances that make the custody unlawful. For instance, the petitioner must show how the respondent improperly denied access to the children or violated a previously established custody ruling.
The writ of habeas corpus is particularly useful in settling situations where the parent declined to return children, following a court appointed visitation term. In this case, the petitioner will explain that he or she was denied parenting time in violation of the custody terms.
Other terms included in the writ are intended to establish the relationships and residences of the children. For instance, paternity test results or other documents verifying the father of the children are often included. The courts also require that the residency of the minor children be established, at least for the most recent five years. Documents establishing residency should also detail what other individuals also resided with the children. The court will also want the current addresses of everyone with whom the children previously lived.
In determining the legitimacy of the petition for the writ, documents should also be supplied that prove the previously established custody agreement. Court documents outlining the terms of shared custody and visitation rights will be necessary, before the judge can determine whether or not to grant the writ of habeas corpus.
Additionally, it will be necessary to document any other legal proceedings which involve the children or the parents of the children. This includes civil lawsuits and criminal actions. Similarly, the court will also want to review protection orders that may have been granted for one party, or for the protection of the children.
The last stipulation that must be included is the request, or what the petitioner would like the judge to do. The petitioner may only want the judge to force the respondent to comply with a visitation order, or the petitioner may want the children turned over for custody time. Whatever the goal of the petition, it must be detailed in the request for the writ.
As with any court document, a writ of habeas corpus must be exact and must provide complete details about the circumstances of the case. Ultimately, it’s up to the judge to determine whether or not to grant the writ, but supplying the court with as much detail as possible can go a long way toward convincing the judge to issue the writ. As with any legal proceeding, filing a writ of habeas corpus is best achieved, when petitioned with the help of an experienced family law attorney.

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