Explaining The Writ Of Habeas Corpus

Writ of Habeas Corpus definition

Definition of writ of Habeas Corpus

The writ of Habeas Corpus is one of the most powerful forms of law that is applicable in our country. It is an ancient common law prerogative writ, as it is a legal procedure, for which every citizen in the country has a right. A court has the power, or rather it is the duty of the court, to issue the Extraordinary Writ of Habeas Corpus. It is applied in cases where a person has been restraining the liberty of another person.

The person who is restraining the liberty of another person by keeping him in custody will have to answer to the court, the reasons for doing so. If the person is unable to provide sufficient details regarding the custody, then the court is bound by duty to order the release of the person in custody.

The writ of Habeas Corpus definition

The writ of Habeas Corpus is one of the most powerful and fundamental part of the American and all other English common law derivative systems of jurisprudence. It is a peaceful method of negotiating with a person who is in control of the liberty of another. The writ of Habeas Corpus has its roots in the British common law, and to study the history of the Habeas Corpus and to know more about it, it is necessary to understand a little bit of history.

legal right to custody

Habeas Corpus definition

Uses of writ of Habeas Corpus

The writ of Habeas Corpus is usually used when a child is being wrongfully kept in custody by one of the parents. When the other parent decides to change this, he or she can then approach the court with a writ of Habeas Corpus. It needs to be noted that a writ of Habeas Corpus cannot be brought to modify the custody of the person.

Not everyone can bring a writ of Habeas Corpus in a court of law. It should be a person who has legal right to custody of the child or children who are in custody. In certain cases were the legal custodian has been proved to be unfit by clear and satisfactory evidence, the court can grant custody to someone other than the legal custodian.

The writ of Habeas Corpus definition can prove to be a tough nut to crack if you are not aware of certain other legal definitions.

Steps To File A Habeas Corpus For Family Cases

Writ of habeas corpus definition

How to file a writ of Habeas corpus petition

Habeas Corpus is a writ or procedure that protects a person from illegal detention by another person(s) or other authorities by being ordered to appear in court to argue their case against such a detention. In such case, the holding authority has to comply with the court’s ruling and present the detainee failing which he or she could be tried for contempt. Although usually used in criminal cases, this procedure can be also used for family law disputes. The writ of habeas corpus is a protection force against violation of a person’s fundamental right of freedom.

For example, a parent can try to secure the custody of a minor child if it happens that the other parent has taken illegal custody of the same. Thus, according to the writ of habeas corpus definition, the dispute will have to be taken to court and the arguments of both parents will be heard.

Given below are the guidelines to file a family law based writ of habeas corpus:


Steps for filing the writ in family law cases

Steps for filing the writ in family law cases

  • Consult a lawyer and discuss your case. The lawyer will then prepare a case and decide how the petition will be filed.
  • Verify which court has jurisdiction to hear your writ. The Supreme Court has jurisdiction to hear the writ in New York and the Superior Court in Georgia.
  • Fill the writ with all the required details. The case petition is to be written at the top of the writ defining the various fields. The writ of habeas corpus definition should include the name of the court, the county and the state from where you are filing the petition.
  • In the “Petitioner” field, write your name. Fill in the “Respondent” field as “v. [Person wrongfully detaining child]“.
  • Center the title and write it under the case caption. Label the title as “Petition for Habeas Corpus.
  • Mention the reasons for filing the writ. Write in detail the events the occurred that made you file the case. Mention about yourself and how your child was wrongfully detained.
  • Take a copy of the petition and send it to the clerk in the court who has jurisdiction.
  • Along with the petition, mention the details of the current location of the respondent so that the court can send a notice and a copy of the document.

A minimum of ten days is granted to the defendant to appear before the court along with the detainee.