File for a Writ of Habeas Corpus
This procedure is a last resort to recover your children if the other parent or person claiming the right to legal custody has abducted them. (Forms and instructions)
1. Fast facts
What is a writ?
A Writ of Habeas Corpus is a court order demanding some action from a sheriff or other person. In family law cases, the court order demands that a parent turn children over to the court.
A writ orders law enforcement to take custody of the children and bring them to court. The writ won't tell law enforcement to give the children to you. When law enforcement brings the children to court, a judge decides what happens to the children next.
A judge can order a warrant with a writ that gives law enforcement the power to:
- Break and enter to find your children
- Arrest anyone who stands in the way of getting the children back
When can I get a writ?
Judges rarely use this powerful and extraordinary tool. It could be traumatic for the children to be taken from the abducting parent by law enforcement. CPS could get involved. The children could have to spend a night or two in foster care until they can get to court and see a judge.
Usually there are other things you can do to get your children safely back when the other parent has taken them. You should ask for a writ in your custody situation only as a last resort when other things you’ve tried have failed, or if the other parent might disappear with the children if you did anything else. Don’t use the writ just to try to get out of a longer court procedure, such as contempt or a petition to change parenting plan.
How do I get a writ?
It depends on the county. Generally, you file a Petition in the county Superior Court where the child is right now (or where you believe the child is) with a certified copy of the order giving you custody. The judge will decide whether to give you a writ and whether to give law enforcement the power to use forcible entry or arrest to get the children back.
Talk to law enforcement before starting this procedure. It may save you time and money. Law enforcement will understand the legal elements your paperwork must meet. They may advise you not to use this process. Or they may do a criminal custodial interference investigation and arrest the abducting parent. Then you wouldn't need a Writ.
Law enforcement usually charges to serve a writ. Even if a judge waives (excuses) your court filing fees, you’ll probably still have to pay the sheriff's fee for service.