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Habeas Corpus Guide

A writ of habeas corpus is a legal tool for enforcing a superior right of possession to a child.
Overview

Guide Overview

A writ of habeas corpus is a legal tool that a person can use to enforce a superior right of possession to a child. In other words, if you have the legal right to have a child live with you—and someone else without that legal right is keeping your child away from you—you can ask the court to order that person to return your child to you. 

You can use this kit when:

  • You have a custody order giving you the legal right to a child, and another person is keeping the child from you in violation of that order; or
  • You are a parent, and you have not been able to get your child back from someone who is not the child’s parent.
  • You have been served with a Petition for Writ of Habeas Corpus, and you do not think the child should be returned to the person who filed the Petition.

The Family Helpline, Texas RioGrande Legal Aid, and TexasLawHelp created this guide.

Research Tips

Start by reading What to Do When a Parent Refuses to Follow a Court Order and Return a Child, and the Frequently Asked Questions section below. 

You can also go to a law library to conduct legal research. How? See the TexasLawHelp Legal Research Guide

There is a directory of public local law libraries at Law Libraries in Texas.

Examples of books and guides to look for at a law library:

  • O’Connor's Texas Family Law Handbook
  • Texas Family Law Practice Manual
  • Texas Family Code Annotated
  • Texas Jurisprudence

A law library may also have a subscription to an electronic legal research service such as Westlaw or LexisNexis.

A Texas resident who's not near a law library may access more information by registering for a free Texas State Law Library Account. With this account, you can access a variety of online sources. 

Frequently Asked Questions

Texas Family Code 157.371 states that the Petitioner may file a petition for a writ of habeas corpus in either the court of continuing, exclusive jurisdiction or in a court with jurisdiction to issue a writ of habeas corpus in the county in which the child is found. 

However, some local rules (like Dallas County local rule 1.03) may require a petition for writ of habeas corpus to be filed in the court of continuing, exclusive jurisdiction, if one exists.  It is important to review the local rules for the county where you plan to file.  If you are unsure of where to file, you should speak with an attorney. 

If the children have the same legal mother and father, or legal managing conservator, it may be possible to include all the children in the same petition.

But if there are separate conservatorship orders for each child, or if the children have different parents, it may be necessary to file separate petitions for each child. The Petitioner will have to determine if he or she has superior right of possession to each child individually. 

Texas Family Code 160.201 lists out the ways that a parent-child relationship can be legally established.  A mother is someone who gives birth to a child, adopts a child, or is found by a court to be the mother of a child.  A man can be a legal father by presumption, acknowledgment, by adopting a child, or if he is found to be the father by a court (adjudicated).  There are special rules for paternity through assisted reproduction. 

It is possible for a man to be the biological father of a child and not be the legal father of the child.  In these situations, it may be necessary to establish paternity before a man can file a Petition for Writ of Habeas Corpus. 

A legal mother can prove she gave birth with a birth certificate bearing her name.  An adoptive parent can provide a certified copy of the adoption decree.  An adjudicated parent can provide a certified copy of the court order. 

An acknowledged father can obtain a copy of his Acknowledgement of Paternity through the Vital Statistics Unit at Application for Acknowledgment of Paternity Inquiry (texas.gov).  

In general, a presumed father could provide a certified copy of the marriage certificate and birth certificate.  However, there are other more complicated situations where a man may be a presumed father.  If you are unsure if you are a presumed father, you should speak with an attorney. 

In all of the above situations, a parent will likely be expected to provide a valid form of identification. 

In Texas, an Order in a Suit Affecting Parent Child Relationship will generally say who has the superior right of possession.  This could include a temporary or permanent divorce order, Original SAPCR order, or Modification order.  If anyone has ever set up child support through the Texas Attorney General’s Office, there is likely a court order for conservatorship and possession.  An adoption decree will also generally say who has the superior right of possession. 

A judge can only order the return of the child based on an order granted in a proceeding where parties were given notice and an opportunity to be heard. For example, a Temporary Restraining Order may not be sufficient to compel the return of the child if it was granted ex parte without notice to the Respondent. 

Sometimes a parent may sign a Power of Attorney or an Authorization Agreement for care of a child and give temporary permission for a non-parent to care for a child. This is not the same as a court order and cannot be the basis for a Petition for Writ of Habeas Corpus. 

If the court finds that the Petitioner has the superior right of possession, the court must grant the return of the child to the Petitioner in the following circumstances:

  1. If the Petitioner has the superior right of possession under a court order and
    • The petitioner has not relinquished possession of the child for at least 6 months before the case was filed, and
    • There is no serious immediate question concerning the child’s welfare
  1. If the Petitioner has the superior right of possession by law as a parent and
    • The Respondent is not a parent of the child, and
    • No SAPCR is pending, and
    • The petitioner has not relinquished possession of the child for at least 6 months before the case was filed, and
    • There is no serious immediate question concerning the child’s welfare

The court has discretion (meaning the judge can decide to return the child to the Petitioner or not return the child) in the following circumstances, even if the Petitioner has the superior right of possession:

  • The Petitioner relinquished possession of the child for at least 6 months before the case was filed, or
  • There is a serious immediate question concerning the child’s welfare, or
  • A SAPCR is pending and the parties have already been given notice that a hearing on temporary orders is set for the same time as the hearing on writ of habeas corpus

Note: If a SAPCR is already pending in your situation, you should speak with an attorney before attempting to use this kit. 

This is up to the judge to decide; however, in general it means that immediate action is necessary to protect the child from imminent danger of physical or emotional harm. Different courts have interpreted this in different ways.  If you are unsure if this applies to your situation, you should speak with an attorney. 

Instructions & Forms

Use the questions in the checklist below to help you determine whether a writ of habeas corpus would help you get your child back, or if you need to respond to a petition for habeas corpus.

You can use this guide when:

  • You have a custody order giving you the legal right to a child, and another person is keeping the child from you in violation of that order; or
  • You are a parent, and you have not been able to get your child back from someone who is not the child’s parent; or
  • You have been served with a Petition for Writ of Habeas Corpus, and you do not think the child should be returned to the person who filed the Petition.

This guide includes:

  1. Instructions for filing a Petition for Writ of Habeas Corpus (Petitioner)
  2. Instructions for filing a Response to Petition for Writ of Habeas Corpus (Respondent) 

And the following forms:

  1. Petition for Writ of Habeas Corpus
  2. Order for Issuance of Writ of Habeas Corpus
  3. Response to Petition for Writ of Habeas Corpus
  4. Order Granting or Denying Return of the Child

Checklist Steps

To help you determine whether this guide is right for your situation, first read What to Do When a Parent Refuses to Follow a Court Order and Return a Child.

These forms are intended for particular situations.

Using these forms without help from a lawyer should be a last resort.

Even if you are not a lawyer, you will be expected to know the court rules when you represent yourself. If you decide you will file these forms without an attorney, you should first receive as much advice as possible before filing.

Talk to a lawyer before representing yourself. Start by looking for legal help in TexasLawHelp's Legal Help Directory.

There are steps that you should take before filing a lawsuit on your own.  If there is a court order, get a certified copy of the order which says that you have the right to the child. Ask your local police to help you enforce the terms of the order. Law enforcement is not required to help you enforce the terms of the order, but if they do, it can help you avoid going to court.

Seek legal advice from a family law attorney about your particular situation.

Do not use this guide for the following situations. Seek representation by an attorney if any of the following apply:

  • Cases when a SAPCR (Suit Affecting Parent-Child Relationship) is already pending. In this situation, you should talk to a lawyer.
  • A situation where you only need an order for conservatorship of a child. Although it is sometimes possible to obtain temporary orders for conservatorship of a child during a Writ of Habeas Corpus proceeding, this kit does not include forms for temporary orders. 
  • One or more parties live outside of Texas or where the child is being illegally held in another state. 
  • A situation where a child is being held illegally and is at risk of immediate and severe abuse or neglect. In this case, a Writ of Attachment gives law enforcement permission to take the child into custody. Or a Temporary Restraining Order may be an option. If you believe a child is being abused or neglected, you should report it to Child Protective Services Statewide Intake at 800-252-5400. In this situation, other orders may give law enforcement permission to take the child into custody. Talk to an attorney or, if you cannot afford one, contact the Family Helpline.

If you or someone else has ever gone to court to get a conservatorship (custody) or possession (visitation) order for a child, then your order should say who has the superior right of possession. 

Often, these orders only determine the possession rights of the mother and the father.  However, sometimes the order gives possession rights to relatives or non-relatives who have gone to court to request rights to the child. 

Usually, the court order will choose one adult who has the exclusive right to determine the child's primary residence.  Any other adult with possession rights to the child will have a specific visitation schedule explained in the order.  If you are trying to determine who has the superior right of possession, you should read the order carefully. 

Any person with a superior right of possession under a court order can file a Petition for Writ of Habeas Corpus against any other person with an inferior right of possession (or no right of possession).  The person filing the petition does not necessarily have to be a parent.

For example:

  • A parent who has the exclusive right to determine the primary residence of a child (the "custodial parent") could file a petition against the other parent (the "noncustodial parent") who is keeping a child past their period of possession (visitation).     
  • A grandmother who has court-ordered managing conservatorship of a child could file a petition against a mother who only has possessory conservatorship and is refusing to return the child to the grandmother. 
  • Any person with conservatorship of or possession rights to a child under a court order could file a petition against a person who has no legal rights to the child (such as a nanny, babysitter, teacher, or neighbor) if that person is refusing to return the child to the conservator.   

If you are unsure who has a superior right of possession based on the court order, you should get a copy of the order and speak with an attorney about it. 

You will need a certified copy of your court order from the district clerk's office of the county where the order was made. The certified copy will have a special seal on it. 

If no person has ever gone to court to ask for orders for conservatorship or possession of a child, then only a legal parent can have a superior right of possession to the child. Parents have the right to possession of their child under Texas Family Code 151.001

If there is no court order, one parent cannot file a Petition for Writ of Habeas Corpus against the other parent because the parents have the same rights.  Similarly, if there is no court order, a Petition for Writ of Habeas Corpus cannot be filed by a non-parent against another non-parent because neither of them has any rights to the child. 

If there is no court order regarding possession of a child, a Petition for Writ of Habeas Corpus can only be filed by a legal parent against a non-parent who is holding the child illegally.  Review the FAQs for more information on who is considered a legal parent. 

These instructions explain the steps to request a Writ of Habeas Corpus and an Order Returning a Child. These instructions are for the Petitioner—the person who opens the case and files the petition.

WARNING! These instructions provide general information, not legal advice. It’s a good idea to talk with a lawyer about your particular situation.

Checklist Steps

  • Petition for Writ of Habeas Corpus: This form is filed by the Petitioner (the person filing the case) and tells the judge why you have a superior right of possession to the child.  It also asks the judge to issue a Writ of Habeas Corpus, ordering the Respondent to bring the child to court for a hearing. 

To fill out section “3. Court Order for Conservatorship of the Child(ren),” you must first determine whether a court has ever issued an order for possession regarding the child that you want returned to you. 

  • If there is a court order for possession, and you are claiming a superior right of possession because of that order, select option (1) and attach a certified copy of the order to your petition. 
  • If there is no court order, only a legal parent can file the petition against a nonparent. If you are a legal parent, select option (2) and attach proof that you are the legal parent of the child. 

Tip: Because court orders can be long and complicated, it is a good idea to highlight or mark the sections that explain who has the superior right of possession to the child so that the judge can review it more easily. 

Who is the Respondent?  The Respondent is the person who is holding the child illegally, either because:

  • A court order says you have a superior right of possession, or
  • You are a parent of the child, the Respondent is not a parent, and there is no court order. 

Tip: It is very important that the Respondent’s legal name and address you list on the Petition is correct! If the Respondent cannot be served, he or she will not know to bring the children to court for the next hearing. 

  • Order for Issuance of Writ of Habeas Corpus: You do not know if the judge will issue the Writ of Habeas Corpus; however, it is good practice to fill out the Order for Issuance of Writ of Habeas Corpus and present it to the judge with your Petition. If the order is granted, the judge will sign it and the judge or the clerk will fill out the portion that says the date, time, and place of the next hearing.

Contact your clerk’s office for information on how to do this. Your county may require a certain judge to review your paperwork, or you may be able to take your paperwork to the “duty judge” who is available anytime.  The judge will review your petition and any exhibits ex parte (meaning, you will not be present).

If the judge grants your request to issue the writ of habeas corpus, the clerk should prepare the paperwork for you and make arrangements for the writ to be served on the Respondent.   

Make sure to review the Order Granting Writ of Habeas Corpus after it is completed by the judge so that you know when the next hearing is set for.   Mark the hearing in your calendar and make sure you have reliable transportation to the courthouse. 

The focus of the habeas corpus hearing is very narrow: it is limited to who has a superior right of possession of the child.

Only in limited circumstances—such as where the Respondent has alleged that there is a serious immediate question concerning the child's welfare or where the Petitioner has relinquished care of the child for at least six months—should additional evidence regarding the wellbeing of the child be presented. 

The Respondent has the right to file a written response to your Petition. They must file the response before the hearing, and you should receive a copy of it. The response explains why the Respondent thinks the judge should not give you the child back. If the Respondent files a Response, review it carefully to know what the Respondent will try to argue in court.  (See the "common questions" section for more information on what a Respondent may claim.)

Prepare any evidence that you think you need to present. If you plan to testify, practice what you want to say. 

Prepare your Order Granting Return of Child(ren). 

Prepare your proposed Order Granting or Denying Return of Child. You can fill in the information you know, such as the case number, court, names of parties, and names and birthdays of the children. When you attend court, be ready to write down what the judge says because you may be expected to fill out the rest of the order. It is a good idea to bring an extra copy of the order if the judge wants to look at it. 

At the hearing, both you and the Respondent will have an opportunity to explain what you want and present any evidence that supports your position. 

Attend this hearing! If you do not, the judge may not be able or willing to return the child to you. 

If the court finds that the petitioner has the superior right of possession, the court MUST grant the return of the child to the petitioner in the following circumstances:

1) The Petitioner has the superior right of possession under a court order and

  • The petitioner had not relinquished possession of the child for at least six months before the case was filed, and
  • There is no serious, immediate question concerning the child’s welfare

2) The Petitioner has the superior right of possession by law as a parent and

  • The Respondent is not a parent of the child, and
  • No SAPCR is pending, and
  • The petitioner had not relinquished possession of the child for at least six months before the case was filed, and
  • There is no serious, immediate question concerning the child’s welfare

The court has discretion (meaning the judge can decide to return the child to the petitioner or not return the child) in the following circumstances, even if the petitioner has the superior right of possession:

  1. The petitioner relinquished possession of the child for at least six months before the case was filed, or
  2. There is a serious immediate question concerning the child’s welfare, or
  3. A SAPCR is pending, and the parties have already been given notice that a hearing on temporary orders is set for the same time as the hearing on the writ of habeas corpus.

    Note: If a SAPCR is already pending, talk to a lawyer before using this kit. 

Forms Required

If you are served with a Petition for Writ of Habeas Corpus, and the person who filed the case (the “Petitioner”) is claiming that you are holding a child illegally, you are called the “Respondent” in the case.

A Respondent has the right to file a Response to the Petition before the hearing that is set by the judge.  A Response will tell the judge that you disagree with the Petitioner and will explain why you do not think you should have to return the child to the Petitioner.

The reasons a Respondent may not have to return a child to the Petitioner generally fall into 2 categories:

  1. The Petitioner does not actually have a superior right of possession to the child.  This could be because the Petitioner is wrong about what right he or she has, or what rights you have; it could be because the Petitioner is mistaken about whether there is a court order or what court order is currently valid.  It could also be because you were not given notice or an opportunity to go to court about the order the Petitioner is relying on. If you can prove that you actually have the superior right of possession to the child, the judge should deny the Petitioner’s request to have the child returned to him or her. 
  2. You do not think the Petitioner should get the child back because the Petitioner presents a danger to the child, or the Petitioner has relinquished the child to you for at least 6 months before the case was filed.  In these situations, the judge generally has discretion (meaning, a choice) on whether to give the child back to the Petitioner or let the child stay with you. 

Checklist Steps

If you are the Respondent, you will first find out about the case because you will be served with a copy of the Petitioner’s Petition for Writ of Habeas Corpus, the Order for Issuance of a Writ of Habeas Corpus, and the Writ of Habeas Corpus.  You should review all of the documents carefully.  The documents will tell you who the Petitioner is, who the child at issue is, and why the Petitioner believes that they have a superior right of possession to the child.  The documents will also tell you the date, time, and place that a hearing has been set.  The Writ of Habeas Corpus is an order saying you must attend court on that day, and you must bring the child with you. 

If you do not think you should have to return the children to the Petitioner, you can fill out the Response with the reasons why you think returning the children would be wrong or unsafe. 

Under section “2. Defenses,” you can select one or more reasons why you think you should not have to return the child.  (See the FAQs in this toolkit for more information on the defenses.)  If you are unsure if any of the options apply to you, you should speak with an attorney.   

If you believe that you actually have the superior right of possession of the child, you can obtain legal documents that show this.  (See FAQs for more information on what documents might be helpful.)  The documents can be attached as exhibits to your Response.  For example, if the Petitioner attached the wrong court order regarding possession of the child, you can attach a certified copy of the correct order for possession.   

Tip: Because court orders can be long and complicated, it is a good idea to highlight or mark the sections that explain who has the superior right of possession to the child so that the judge can review it more easily. 

Remember that the Response must be filed with the clerk before the date that the hearing is set. You must give a copy of the Response to the Petitioner so they know why you think the child should not be returned. 

The focus of the habeas corpus hearing is very narrow: it is limited to who has a superior right of possession to the child.  Only in very limited circumstances—such as where you have alleged that there is a serious immediate question concerning the welfare of the child, or where the Petitioner has relinquished care of the child to you for at least six months—should additional evidence regarding the well-being of the child be presented. 

Prepare any evidence that you think you need to present.  If you plan to testify, practice what you want to say.

 

At the hearing, both the Petitioner and you will have an opportunity to explain what you want and present any evidence that supports your position. 

It is very important that you attend this hearing! If you do not, you are in violation of a court order.  The judge could hold you in contempt of court, and there could be penalties including fines, fees, or even jail time.  Also, if you do not attend, the judge will not be able to hear your side of the story. 

If the court finds that the Petitioner has the superior right of possession, the court MUST grant the return of the child to the Petitioner in the following circumstances:

1) The Petitioner has the superior right of possession under a court order and

    • The petitioner has not relinquished possession of the child for at least 6 months before the case was filed, and
    • There is no serious immediate question concerning the child’s welfare

2) The Petitioner has the superior right of possession by law as a parent and

    • You are not a parent of the child, and
    • No SAPCR is pending, and
    • The petitioner has not relinquished possession of the child for at least 6 months before the case was filed, and
    • There is no serious immediate question concerning the child’s welfare
    • The court has discretion (meaning the judge can decide what to do) to return or not return the child in the following circumstances, even if the Petitioner has the superior right of possession:

    • The Petitioner relinquished possession of the child for at least 6 months before the case was filed, or
    • There is a serious immediate question concerning the child’s welfare, or
    • A SAPCR is pending and the parties have already been given notice that a hearing on temporary orders is set for the same time as the hearing on writ of habeas corpus. Note: If a SAPCR is already pending in your situation, you should speak with an attorney before attempting to use this kit. 

If the judge orders you to return the child to the Petitioner, you must follow the court order or you risk being held in contempt of court.  Penalties for contempt can include fines, fees, or jail time.  The judge will give specific orders about where and when the child should be returned to the Petitioner.  It could be immediately after court, or it could be at a later time or date.  It is important that you clearly understand the judge’s order. 

If the Court denies the return of the child to the Petitioner based on a serious immediate question of welfare, or because the Petitioner relinquished the child for over six months, you should speak to an attorney about whether to file an Original SAPCR or Modification to get appropriate conservatorship orders for the child. If the child has been abused or neglected or is in danger of abuse or neglect by the Petitioner, and you cannot afford an attorney, you can contact the Family Helpline for free legal information. 

If the child has been abused or neglected or is in danger of abuse or neglect by the Petitioner, and you cannot afford an attorney, you can contact the Family Helpline for free legal information. 

Forms Required

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