How To Enforce Superior Right Of Possession Of A Child – Sometimes, a person who believes they have right of possession of a child will seek help from the courts to get his or her child back from a former spouse. This can be because of a variety of reasons – maybe both spouses believe they have been granted possession, or perhaps one is illegally keeping the child from the rightful parent.
If a party believes they have right of possession of a child, they can file what is known as a petition for writ of habeas corpus. This article will discuss what goes into this process and what the court looks for.
What is a writ of habeas corpus?
Habeas corpus is latin for, “You have the body.” So when someone petitions for a writ of habeas corpus in a possession of a child case, they are asking for a court order (writ) that commands an individual who has possession of the child to return or release the child.
To obtain a writ of habeas corpus under a court order, a party must prove:
- They have court documents proving they were granted superior possession of the child
- Those orders are current
- Whomever currently has the child is illegally keeping the child from them
To obtain a writ of habeas corpus under law, a party must prove:
- There is no court order for possession of the child
- They are the parent
- The person who has the child is not the child’s parent
- The person who has the child is illegally keeping the child from them
Once a petition has been filed and granted, the court can issue a writ of habeas corpus to order the respondent to appear in front of the court for a hearing. If needed, the court can sign off on a writ of attachment. This writ involves having a sheriff or constable go find the child and bring them to the court.
At the ensuing hearing, all parties can present evidence in their defense. The court will then make the proper determination on custody, which could mean forcing the return of the child to the rightful parent or denying the order.
It is always a good idea to talk to a lawyer about your situation. Give Nelson Law Group, PC a call. Our friendly staff is here to help you in any way we can. For more information about Brett A Nelson, click here.