Learn about writs of habeas corpus: court procedures available when someone refuses to return a child. The article explains writs of habeas corpus and how to seek the immediate return of a child through the courts.
Getting a judge to sign an order for the return of a child to you can be a two-step process.
Note: The Petition for Writ of Habeas Corpus can ask the judge to sign both a Writ of Habeas Corpus and a Writ of Attachment. So, the lawsuit can ask for two actions to secure the child’s return.
A Petition for Writ of Habeas Corpus is a lawsuit where the person with the court-ordered or legal right to possession of a child (realtor) asks the judge to sign an order that the relator has superior right to possession of a child to secure a child’s return.
A Writ of Habeas Corpus requires the person with the child to come to court with the child at a specific date and time so that the judge can decide who has a superior right to possession of the child.
A court order a judge signs that requires the respondent to surrender the child to a sheriff or constable so that the child may be delivered to you, the court, or an agency named by the judge.
The Writ of Attachment is given to (served on) the respondent by a sheriff or constable, who will immediately take possession of the child and bring the child to court, to you or to an agency named by the judge.
Remember: If necessary, you may ask for a Writ of Attachment at the same time you ask for the Writ of Habeas Corpus.
The following people can file a petition for writ of habeas corpus:
Note: When there is no court order in place, a Petition for Writ of Habeas Corpus cannot be heard between two parents or two or more nonparents.
The relator is the person who files the Petition for Writ of Habeas Corpus, which asks the judge to decide who has the superior right to possession of the child.
The respondent is the person who has possession of the child, but is refusing to return or deliver the child to the relator.
Talk with a family law lawyer for help starting a Writ of Habeas Corpus case.
You can read and use the guide I want a court to order my child returned to me. for information, forms, and instructions on filing a Writ of Habeas Corpus.
The purpose of a Writ of Habeas Corpus is to secure the child’s return, not to change existing possession orders or punish the respondent for keeping the child for a short period of time when the child has already been returned to you by the time you get to court.
If it is likely that the respondent will have returned the child to you before the Writ of Habeas Corpus is signed, file a Motion for Enforcement instead. Talk with a lawyer if you have questions or need advice.
Yes. You can hire a family law lawyer just to give you advice, provide you with forms, review your forms, or help you prepare for the hearing. You may then be able to handle the other parts of your case yourself. Hiring a lawyer for a limited purpose is called limited scope representation.
You may also be able to talk with a lawyer for free at a legal clinic. If you need help finding a lawyer, you can:
File your Petition for Writ of Habeas Corpus in:
Note: If you want to file the Petition in the county where the child is located, and not the court of continuing jurisdiction, check with the clerk of the court in the county where the child is located to learn if any local rules prohibit you from filing the Petition in that court. Some courts (like the Dallas County Family Law Courts) have local rules requiring the case to be filed in the court of continuing exclusive jurisdiction.
Yes. There is a fee to file a Petition for Writ of Habeas Corpus. The fees may vary by county. Call the clerk’s office in the county where you will file the Petition to learn the fees.
If you cannot afford the court fees for your case, you can ask the judge to waive the fees by filing a Statement of Inability to Afford Payment of Court Costs. Read Court Fees and Fee Waivers for more information.
When you have court-ordered possession of a child, the judge must order the child’s return to you if the judge finds that:
Note: An exception exists if the judge finds that the existing court order granting possession was signed even though the parties to that case did not have reasonable notice of the hearing and a right to be heard. In that case, the judge cannot order a child’s return to you based on the existing order of possession.
When there is no court order on possession but you have a legal right to possession of the child, the judge must order the child’s return to you if the judge finds that:
Note: For petitions based both on court-ordered possession or legal possession, if you have given up possession of the child for six months before the filing of the Petition or there is a serious, immediate question about the child’s welfare, the judge may grant or deny your request to have the child returned.