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Habeas Corpus - What does it mean and how can it help you in a child custody case

Suppose that you and your spouse have been divorced for a few years and have split custody of your child pretty much 50/50. Both you and your ex-spouse have abided by the divorce decree’s orders regarding visitation and possession and there have never really been any issues.

The farthest thing from your mind is your child one day not returning to you at the scheduled time.

However, one Sunday your ex spouse doesn’t drop your child off at your house at the normal time. You text him to see what’s going on and he says that he doesn’t plan on bringing your son back for a few days.

This at first infuriates you then after a few moments you begin to worry more than fume. Does your child have clean clothes? How will he be getting to school? Will his medication be administered correctly?

Custody splitting is a difficult issue even in the best of environments. You and your ex-spouse agreed to the terms of your divorce decree but if we’re being honest each of you would like to have more time than you are currently allotted under the provisions contained in the order. It is in your son’s best interests that he be able to share a relationship with both parents, but this type of behavior cannot stand.

What are your options if your child is not returned to you by the other parent

In the extreme event that your child is not returned to you by your ex-spouse there are options for you to explore. Hopefully this type of situation never actually occurs but in the event that it does we will like you to be aware of one such option- Habeas Corpus.

Habeas Corpus actions should be undertaken only after first taking a look at your divorce decree or child custody order that is currently in place. These orders are the guidelines that you and the other parent have been operating under and will tell you what the specific rights and duties of each parent are.

In addition to those rights and duties is the allocation of time with your child for you and your child’s other parent. These orders are signed by you, the other parent and the judge and signify that everyone involved has read and understands what each person’s responsibilities are.

If your court order mandates that your child be returned to you at a certain time on a day of the week and your child is not returned according to those terms then the other parent is in violation of the court’s orders.

We will spend this blog post discussing a habeas corpus action, but you may be able to save the time, money and stress of that process by contacting the other parent and attempt to discuss the return of your child directly with him or her. It may surprise you that simply hearing your voice may cause him or her to think twice about doing something that is against court orders.

Speak with a family law attorney to initiate court proceedings

However, if speaking directly to the other parent does not work and your child is still not returned to you it is time to consult with an attorney to discuss other avenues to get your child back. An attorney can confirm what you believe to be true about possession and visitation times as laid out in your court order.

I have had potential clients come into the Law Office of Bryan Fagan, PLLC to discuss a situation where he or she believes that their child is being kept by the other parent against the orders as set forth by the court, only to find out that he or she had misinterpreted the court order.

Assuming that you have read your court order correctly, a family law attorney can consult with you and discuss what your options are as far as using the legal system to assure the safe return of your child. Keep in mind that the sooner you find out what your rights are the sooner you can act on them.

There is a fine line before jumping to conclusions before you have all the facts and then acting appropriately based on knowledge you’ve gained from a licensed family law attorney.

What is Habeas Corpus (besides hard to pronounce)?

If you are the parent with a legal right to possession of your child then you may initiate a writ of Habeas Corpus to have your child returned to you by the other parent who is wrongfully in possession of your child.

As we’ve touched on before, it is critical that there is a valid order in place that governs possession, access and visitation of your child and that this order states that you have the right to possession of your child at the time that you believe it does. In the event that you can satisfy this issue then you have a strong chance of being able to succeed in a habeas corpus action.

You would need to file a petition for a writ of habeas corpus in the court in which your order comes from. If you have no order in place then you would likely need to file it in the county in which your child resides.

In the event that you do have a valid court order in place, the judge would look to see whether or not you have the right to possession of your child during the time period that you asserted in your petition that you do. Assuming that you are correct, the judge will order the return of your child to you by the other parent. This is essentially a “no questions asked” process, where the judge is enforcing the terms of the order in a fast and efficient manner.

Questions about habeas corpus actions or other family law matters? Contact the Law Office of Bryan Fagan, PLLC

If you have any questions about habeas corpus proceedings or any other issue related to family law, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC today. One of our licensed family law attorneys is available six days a week to meet with you and discuss your situation free of charge.


If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.

A divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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