Writs of Habeas Corpus Bring in the Big Guns
Writs of Habeas Corpus (“Writs”) are legal orders issued by the court permitting law enforcement to bring an individual before the bench by force – usually when they are being unlawfully held somewhere against their will. In family law, Writs are most employed to return an abducted child to the rightful parent.
For when things go wrong.
Writs are not civilized instruments. They are orders that permit the discretionary use of violence by peace officers to bring an individual before the court. This power is potentially destructive, traumatic, and is only granted in the most extreme of circumstances.
Things to keep in mind:
- 99.5% of cases do not need or cannot get Writs.
- Courts hate violence and will only apply it for compelling cases.
- Expect the effort to be expensive and time-consuming.
Only Judges can grant Writs. Commissioners do not have the power and are forbidden from granting maximal relief by law.
Interstate – Implicationst
Writs can be used to secure the cooperation of inter-state law enforcement agencies. Other states will even coordinate to return a child from the other side of the country, should they be found outside of Washington.
Here is what you need to allege to get a Writ (generally):
- You must specify who is restrained against their will, and where.
- The cause of the unjust restraint or capture.
- Whether this restraint is alleged to be unlawful.
IN A NUTSHELL: tell the court what is going on and be ready to back up your claims thoroughly. General allegations without substantiation are not sufficient.
The Drawbacks.
TFLO’s are great tools, but they are not always best applied in every case. TFLO motions are expensive and slow. They can take several weeks to be heard by a judge, and your victory is never assured.
This is why attorney guidance is so important – we can peer around corners and advise likely outcomes. Hopefully, a good attorney can stop you from wasting a lot of time and effort.
Once established, TFLO’s are not binding on the outcome of your case. But they can influence the outcome indirectly.
Attorneys and litigants use TFLO motions to get a sense of what the court thinks about the issues in a case. If the court looks unfavorably at your ask at a TFLO hearing, you can probably bet that the court will think similarly of the argument at trial.
IN A NUTSHELL: While TFLO’s are not binding upon the court’s final decision, they tend to strongly rhyme. Knowing what the court generally thinks of your arguments can be a powerful factor during final negotiations.
The process of granting and using a Wrist:
Petition for a Writ before the bench.
Assemble your evidence and ask the court for authorization for law enforcement to intervene.
Writ is granted and sent to law enforcement.
Sometimes, the court handles distributing the Writ to the law enforcement concerned. If your case involves interstate or international jurisdictions, you may need to provide the Writ to federal authorities.
Writ is executed.
Hopefully, law enforcement locates the individual or individuals stipulated, and brings them into safe custody.
Individual is returned.
The individual is found and returned to the court. If the individual is a small child, the court will generally permit the child to be held by the favored parent pending a hearing.
Return hearing.
Once the Writ is executed and the individual is back in safe custody, a second hearing is held to adjudicate the matter and enter appropriate findings. In family law, this is usually where the child is permanently released into the prevailing parent’s custody pending a parenting plan entry by the family court.
WARNING:
While a Writ is practically issued permitting physical intervention against another party, in theory it is issued against anyone who holds the restrained individual. If your child is returned to you, you MUST deliver the child to the court for a return Writ hearing. If you do not, law enforcement could theoretically come after you, next.
Interested in other Family Law motions?
Temporary family law orders (TFLO’s) are a versatile tool commonly seen in most contested family law cases.
In the State of Washington, you have a constitutional right to have your grievance heard by a full judge of the people.
Reconsiderations are rare tools of last resort. Designed for when errors of law are too.