As part of our appellate practice, clients often come to us asking what they can do after they suffer an unfavorable ruling in the trial court. Most people are familiar with a traditional appeal (challenging the trial court’s final order in the courts of appeals). But a traditional appeal is not available in all family law cases and sometimes other appellate remedies are necessary.

For example, traditional appeals are typically not allowed from child support and possession enforcement orders. Because these orders often include penalties of contempt, which sometimes means jail time, these are some of the most common orders that people what to challenge. But what can you do?

The appellate relief in contempt cases is called a writ of “habeas corpus” (Latin for “that you have the body”). The Supreme Court and the courts of appeals have jurisdiction to issue writs of habeas corpus in cases in which a person’s liberty is restrained (meaning jail) because the person violated an order, judgment or decree (child support or possession for example) in a civil case. Because personal liberty is at issue, habeas corpus proceedings are expedited in appellate courts.

There are several bases on which a writ of habeas corpus may be granted including (1) lack of jurisdiction by the trial court, (2) violation of due process, (3) inadequate or no notice, and (4) if there is no proof that the contemnor violated the trial court’s order. But, if the contempt order does not involve physical restraint (i.e. jail), then mandamus (the subject of my post next week), not habeas corpus is the appropriate way to challenge the trial court’s order.

Time is of the essence when it comes to a writ of habeas corpus. You do not want either yourself or a loved one sitting in jail any longer than necessary. If you think that this remedy might be appropriate in your case, contact an attorney with experience in family law appeals immediately.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.