The writ of Habeas Corpus

writ of habeas corpus definition

The basics of Habeas Corpus

Habeas Corpus is a writ or procedure that protects a person from detention by other person or other authorities by being ordered to appear in court to argue their case against such a detention. The detention, if not having any legal basis will be annulled by the court which should be respected by the detaining person. The phrase ‘Habeas Corpus’ is derived from the Latin language which means ‘You have the body”.

This is the general summary of the writ of Habeas Corpus definition. The law includes various guidelines and protocols which have been detailed through successive judgments. These should be strictly followed; only when the petition has valid arguments will the defendant be allowed free and only with cause will the court allow the detention to be extended. The defendant may seek the help of an attorney to file the petition. The writ is a fundamental right of freedom for the defendant to act against the arbitrary and lawless state action.



Writ of Habeas Corpus definition

The writ is the part of a person’s fundamental right against unjust actions taken against him by the state or any other person. The law originated during the 1400’s in the English common law. The law preserves the right of convicted persons to act against any forced detentions that are influenced using the powers of the Government and Politics.

The petitioners are not allowed freedom with the help of the writ unless they can establish that the detention happened following errors from the judiciary or the government authorities. This law is sometimes misused by convicted criminals to bail out after successfully establishing a false view of the case with the help of a lawyer.

Habeas Corpus in US

The writ of Habeas Corpus has been allowed to all prisoners under the Federal government. All jurisdictions under the Federal government are required to strictly allow defendants to file the writ under almost all conditions. The writ is suspended in a few cases including the ones that affect the security of the nation or political imbalances.

The Federal court has no supervisory authority over the criminal proceedings in State courts. The State courts have the power to reject the intervention of Federal Courts in a writ. There have been a number of cases in the U.S in recent years where the Habeas Corpus writ was passed and the petitioner was granted freedom from detention.

The Habeas corpus is a constitutional right and is one of the most fundamental laws that protect the rights of a citizen. More articles on the writ of Habeas Corpus definition will be posted later. Keep reading!

How Habeus Corpus Can Be Used For Child Custody

writ of Habeus Corpus definition

how to obtain Habeus Corpus

The history of the Habeus Corpus writ petition goes all the way back to the English common law system. If the writ is properly applied, it empowers the court to command a person or persons who are holding someone against their will, to produce them before it and to also produce proof of the necessity to restrain the person who is detaining another person. If the accused is unable to give proper cause for what can otherwise be construed as abduction, the person he had formerly detained has his restraints removed and is released. The writ of Habeus Corpus definition is applicable in the case of children as well as adults. In case of children, for the writ to apply, they must be restrained in some way, but not by the police.

petition the court

how to petition for Habeus Corpus

The Habeus corpus is pronounced in cases where the child is being held by another person other than the parent, or against their will. A good instance of this is when the child pays a visit to his paternal grandparents for a week, after which they decide the child should stay with them and so refuse to return him. The court usually checks all the factors before deciding on what is best for the child. The writ itself cannot be used to change the existing custody order, except if the circumstances are dire.

Who can petition for a Habeus Corpus writ?

To petition the court for a writ of Habeus Corpus, the person doing so must be either a parent, or a person who has custodial claim over the child. In cases where the parent or the custodian is evident to be unfit, a third party can likewise petition the court.

Which courts have jurisdiction

When a petition for Habeus Corpus has been filed in a custodial case, superior courts in the county of residence have jurisdiction, unless there already exists an effective juvenile court order, in which case jurisdiction remains with the juvenile court.

How to remedy the situation

Once the accused fails to comply with the orders in the writ, and shows enough reason for action to be taken, a warrant of attachment can be issued against that person. This warrant directs a county sheriff to make the person detain and produce the missing person before the court.

These are some of the facts regarding the writ of Habeus Corpus definition. Hope you found them helpful.