What is Habeas Corpus?

Latin: You have the body, or bring the body before me so that I may control it.

It is the Great Writ in American law. It is used when someone’s physical liberty is violated, such as when someone is wrongly jailed, as a means to challenge that confinement. It can be used in child custody cases to challenge the violation of a custody order. When we used it this way, the Court sent notice to the other parent and ordered that parent to bring the child before the court so that the Court could control where the child went from there.

The other way it is used is to challenge parents who are incarcerated by the court in a child support, alimony, or spousal support enforcement proceeding. It can be filed by a third party next friend when the primary party is in jail. We often advise parents facing enforcement hearings to prepare a habeas corpus petition prior to the enforcement hearing and have someone prepared to file it on their behalf. We also advise, that when they have attorneys, that they demand before the enforcement proceeding that the attorney file a habeas petition if it goes badly. Many family law attorneys will just let you rot in jail, instead of challenging the incarceration.

The protocol is to file a petition requesting a writ of habeas corpus. Generally, the court will hold a hearing and if the other party shows up the court will address the issues without actually issuing the writ. If the party doesn’t show up, the court will generally issue a capias, which is a type of seizure warrant, to have the party seized and brought before the court. If the petition is filed with an appellate court, the appellate court may issue an opinion holding that the appellate court presumes that the trial court will comply with the appellate court’s holding, but if it doesn’t, the writ will issue. This is simply a courtesy between judges; the holding is ultimately a command to the trial court.

The writ of habeas corpus is processed by the courts with the highest priority and the greatest speed. When properly applied, the writ is a powerful legal tool.


*The only higher priority is a murder trial.