A Petition for Writ of Habeas Corpus provides the means to compel return of a child when the other parent is in wrongful possession. The petition can be filed in the court of continuing exclusive jurisdiction (e.g. the court that rendered the last final order affecting the child) or in a court in the county where the child is found. The parent filing the petition is known as “the Relator.”
Only the right to possession is determined in a Habeas Corpus proceeding. The determination hinges on the existence of a valid court order that gives the Relator a superior right of possession. The issue of which parent “should” have possession based on any real or perceived change of circumstances cannot be relitigated. In that light, any attempt by the parent in wrongful possession to argue that the “best interest of the child” require a change of possession must fail. Once a superior right of possession is established, grant of the Writ of Habeas Corpus “should be automatic, immediate, and ministerial.” In re deFilippi, 235 S.W.3d 319, 322 (Tex. App.—San Antonio 2007, no pet.).
Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.