There are times when a parent actively choose to disregard a court order. This is particularly problematic when the order being disregarded is one dealing with the right to possession and access of children. The usual scenario is that Parent B will pick up a child for their scheduled time of possession and simply won’t bring the child back to Parent A when that period ends. After multiple days or even weeks of not seeing their child this can cause panic for the Parent A. However, there is a legal remedy for this situation, a writ of habeas corpus.
The writ of habeas corpus, derived from Latin meaning “produce the body,” is a legal order that requires an individual to come to the court with the child to determine who has the right of possession to the child.
The process begins with the filing of a petition for writ of habeas corpus in the appropriate court. This petition should outline the specific facts and circumstances justifying the need for immediate intervention, such as a violation of an existing possession and access order.
Next the petition and writ need to be presented to a judge. Should it be established that the superior right of possession is being infringed, the judge will sign the writ and set a hearing to determine who is supposed to have the child. Once the hearing is set, both parties will have the opportunity to present evidence and arguments.
During the hearing there are four main elements that need to be proven. Firstly, there is a court order giving a parent the superior right of possession. Second, the child is being illegally kept from the parent with the superior right. Third, the parent with a superior right has not voluntarily given up possession of the child for six months before filing the petition for writ. And fourth, there is no serious question about the child’s welfare. Should this be done properly the court will compel the withholding parent to turn the child over.