Writ of Habeas Corpus
The Writ of Habeas Corpus is an order that demands the parent or person in unlawful custody of a child return the child post haste to the lawful arrangement. The writ could be directed to any number of parties, agencies, or individuals who are lawfully or unlawfully in possession of a child.
Regardless of whether a Writ of Habeas Corpus is used to establish custody, it may be used to enforce custody or challenge a preexisting custody order. In situations where one parent obtains a custody order in one state and the other parent obtains a custody order in a different state, a petition for a Writ of Habeas Corpus is sometimes used to challenge the jurisdiction of the second state to grant an award of custody. Where parents cannot care for a child, relatives who compete for custody may also use a Writ of Habeas Corpus to challenge custody.
Parents have at times attempted to use Federal Habeas Corpus laws in Federal courts to enforce custody orders. The Federal courts lack jurisdiction except in two circumstances: First, the federal courts are available in cases contesting custody of Native American children. Second, Federal courts may also be available where the parent seeking return of a child alleges that the parent’s constitutional rights have been violated, such as when parents are living in different states and one parent alleges that the other obtained or modified custody without providing notice of a hearing on the custody issue.