Family Law deals with a great number of difficult situations. Ending a marriage or a relationship where a child has been born can be of the most difficult. One of the main issues individuals will face is sharing their child with the other parent. Obviously, it is legally required and in the best interest of both parents and the children involved for everyone to abide by the current court order. However, what do you do if the other parent refuses to return your child? This article discusses one option of enforcement if the child has not been returned to the parent: Habeas Corpus.

 

1. Consult your Orders

 

The first step is to consult the most recent orders from the court on your case. The court orders establish the rights and duties of both parents regarding the child or children. The main determination to make is what time and date are you supposed to have your child according to the court order? If the order requires the return of the child on a specific time and date and the other parent does not comply, that parent is in violation of the court’s orders.

 

What happens if there is no court order governing right to possession of child? This would occur if there has been no prior litigation adjudicating the rights and duties of the parents regarding the child. If the right to possession of a child is not governed by an order, the court in a habeas corpus proceeding involving the right of possession of the child:

 

(1)   must compel return of the child to the parent if the right of possession is between a parent and a nonparent and a suit affecting the parent-child relationship has not been filed; or

 

(2)   may either compel return of the child or issue temporary orders if a suit affecting the parent-child relationship is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding.

 

Tex. Fam. Code Ann. § 157.376(a); Rodriguez v. McFall, 658 S.W.2d 150 (Tex. 1983) (mother entitled to return of child from paternal grandparents); Whatley v. Bacon, 649 S.W.2d 297 (Tex. 1983) (surviving father entitled to habeas against maternal grandparents).

 

If the order provides that you have a right of possession, the first step should be to contact the other parent to try to resolve the issue without litigation. It’s always best if the parents can work together outside of the judicial system. This will avoid unnecessary costs as well as time away from family and work.

 

2. Consult your attorney

 

Let’s assume that you have consulted the orders and determined that you have the right of possession and the other parent has not returned the child. The next call you should make should be to your attorney. Your attorney can advise you what your next steps are and what pleadings to file in order to have your child returned to you. Keep in mind that this article is intended to provide general advice and that there might be (and probably is) facts specific to your situation that would require a different tactic than what is mentioned in this article. Always consult with a legal professional before going to court.

 

I always recommend that individuals contact an attorney as soon as possible because letting too much time expire might cause difficulties in asserting your rights. If the parent without the child has by consent or acquiescence relinquished actual possession and control of the child for six months or more preceding the date of the filing of the petition for the writ, the court may either compel or refuse to order return of the child. Tex. Fam. Code Ann. § 153.373(a). The court may disregard brief periods of possession and control by the relator during the six-month period. Tex. Fam. Code Ann. § 153.373(b).

 

As always, it is very important that you consult an attorney as soon as possible so that they can guide you and inform you of your rights and obligations.

 

3. Habeas Corpus

 

A writ of habeas corpus under Chapter 157 of the Texas Family Code is used by the parent with a legal right to possession of a child in an effort to regain possession from a person wrongfully retaining the child. The sole issue in almost all habeas corpus proceedings is whether the person who is claiming the right to the possession of the child is currently entitled to possession of a child by virtue of a valid court order. This is the reason you will want to consult your most recent orders to determine who has the right of possession.

 

The parent entitled to possession may file a petition for a writ of habeas corpus in either the court of continuing, exclusive jurisdiction (the court that issued the most recent orders in most cases) or in a court with jurisdiction to issue a writ of habeas corpus in the county in which the child is found. Tex. Fam. Code Ann. § 157.371(a). Ex parte Jabara, 556 S.W.2d 592 (Tex. Civ. App.—Dallas 1977, no writ).

 

Although a habeas corpus proceeding is not a Suit Affecting the Parent Child Relationship (known as a SAPCR), the court may refer to the provisions in the Family Code under Title 5 for definitions and procedures as appropriate. Tex. Fam. Code Ann. §§ 101.001 et seq., 157.371(b).

 

Subject to the Uniform Child Custody Jurisdiction and Enforcement Act and the Parental Kidnaping Prevention Act, 28 U.S.C.A. § 1738A, if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child must compel return of the child to the parent with the right to possession only if the court finds that parent is entitled to possession under the order. Tex. Fam. Code Ann. § 157.372(a); Strobel v. Thurman, 565 S.W.2d 238 (Tex. 1978) (the granting of a writ of habeas corpus “should be automatic, immediate, and ministerial … upon proof of the bare legal right to possession.”); In re Lau, 89 S.W.3d 757 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (habeas must be granted in absence of written finding of serious immediate question regarding child's welfare).

 

In a suit in which the court does not compel return of the child, the court may issue temporary orders if a SAPCR is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding. Tex. Fam. Code Ann. § 157.373(c). Notwithstanding any other provision of law, the court may render an appropriate temporary order if there is a serious immediate question concerning the welfare of the child. Tex. Fam. Code Ann. § 157.374; In re Lau, 89 S.W.3d 757 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (habeas corpus petition must be granted in absence of written finding of serious immediate question concerning child's welfare).

 

A Habeas Corpus proceeding is a powerful tool the be used by a parent whose child has been wrongfully kept from them. In another article I will discuss other method of enforcement of court orders. As always, please contact The Moon Law Firm if you have any questions or comments regarding Texas Family Law. I look forward to working with you.