Board Certified Family Law Trial Specialist*
Board Certified Family Law Trial Specialist*

Utilization Of A Writ Of Habeas Corpus On Custody

By Barton R. Resnicoff

There are many tools at our disposal when dealing with custody, parenting time and a parent being denied access to his or her child.  What are the Court’s powers and what should be done when there is a total denial of all contact?

A prospective client [1] , the father, came in for a consultation recently.  His former wife, contrary to the terms of their divorce, had prevented him from having any contact with his six(6)year old daughter, alleging that he was abusing her; she also alleged that during the time she was with her father, she spent time with a neighborhood girl, the same age, who the mother falsely claimed her mother was the father’s girlfriend.  The former wife had also made an unfounded complaint with CPS about six months prior; the father also told me that the mother had, concerning their older daughters, engaged in a similar attempt at parental alienation, with somewhat mixed results.  The truth of these claims were specifically denied by my client.

The parties had a very thorough mediated and written agreement; but based upon the services of a parenting coordinator, they had modified the parenting time schedule over the years.  After the denial started, the parenting coordinator, a mental health professional, had been consulted by both parents and offered to meet with the child to aid the parties; the mother refused.

As we spoke, I was reviewing the alternative approaches in my mind to get him relief and renew contact between a father and his young daughter as quickly as possible.  There was always a post judgment application in the divorce action, by Order to Show Cause, involving fifteen to twenty pages of paperwork, a submission to the Court and a return date of a few weeks to a month or so after the papers were delivered to the Courthouse.  Even if done on an emergency basis and temporary Order was added and granted, with no way to ensure compliance, it would be very expensive and time-consuming approach.  As an alternative, a petition under FCA §651, even by Order to Show Cause, while shorter and quicker, also would result in a Court date at least a few weeks down the road, and hopefully on a day that I was available.  I wasn’t thrilled with either approach.  Father and daughter should be reunited as soon as practical, for every day that the separation remained increased the likelihood of damage to the father-daughter relationship.

Then, I thought of an extraordinary form of relief, a Writ of Habeas Corpus.  The basis for such an application is DRL §70.  The paperwork is succinct, short and to the point.  The respondent is required to have the child in Court on the return date, giving the deprived parent an opportunity for time together in the Courthouse, at a minimum.  I could(and have in the past)choose a very quick return date, subject to Court approval, on a date that I was available.  And, here comes the interesting part, have the Judge assigned make appropriate directions concerning custody and parenting time upon the return.

Just so we are clear, DRL §70(a) provides that

Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, may at any time thereafter vacate or modify such order.  In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, make award accordingly.

Admittedly, without the ability to try and select the return date, there is a similar provision in the Family Court Act, FCA §651, which gives the Family Court jurisdiction to deal with custody, including a Writ of Habeas Corpus.

Procedurally, what governs all of this?  CPLR Article 70 applies to all common law or statutory Writs of Habeas Corpus.  The petition gets verified; the person detained must be identified by name; the place of detention stated, if known, or if not know, described; the cause of the detention set forth; no exclusive jurisdiction in federal court; the nature of the illegal detention; and if there is any appeal taken;

Here is where I started to see, both procedurally and otherwise, inappropriate actions starting with the County Clerk’s Office; to what occurred once the papers were being filed to be delivered to Supreme Court; including the actions of judges and adversaries.  Since then, I have spoken to other counsel and learned that my experience was not unique.  However, to see what is appropriate and why, I decided to do a little research.  As part of my research, the Practice Commentaries in McKinney’s, by Alan D. Scheinkman, now the Presiding Justice in the Second Department, tells us that

The habeas corpus remedy offers a particularly effective means for obtaining a prompt custody determination….it may be that custody questions need immediate resolution…

A custody determination could…be pursued by petition and order to show cause but a writ proceeding is apt to move to a hearing more quickly.

An independent proceeding should not light be maintained.  McKinney’s DRL §70; C70:4

First, after preparing the papers, was filing with the Court; all Writs are a new proceeding, with the need to purchase a new Index number and file an RJI.  Procedurally, Writs are specifically governed by CPLR Article 70, which designates it as a special proceeding, CPLR 7001.  Because of that CPLR Article 4, which governs special proceedings in general, is also relevant.

The petition, when under DRL §70, is based upon CPLR 7002(c); is verified, indicating who is detained and where, with an explanation of the illegality; the cause of the detention; that a United States Court does not have exclusive jurisdiction; whether any prior applications have been made.  I have not included what might be added if made in another County and what does not apply in custodial matters.

The Writ shall issue without delay on any day, CPLR 7003(a); the respondent is the person having custody, CPLR 7004(b), and is returnable in Supreme Court in the County where detained, CPLR 7004(c); returnable “forthwith”; it can be served any day(including Sunday)by delivering the original writ and a copy of the petition, with the possibility of “substituted service” or “nail and mail” under certain circumstances, CPLR 7005.

The response to the writ is a “Return to Writ” and requires to production the “body,” i.e., here, the child detained, CPLR 7006 and 7008(a), with the return being in affidavit form, served and then filed with the original writ on the return date and place.  The affidavit should state if the person detained is in the respondent’s custody, the reason for the detention, with a copy of any mandate justifying the detention, with a copy provided of it.  The contents of the Return to Writ is also governed by DRL §70 and Article 70 of the CPLR, Justice Scheinkman, in the practice commentaries, noting that

The person served with the writ, whether named in the writ or not, is required to make a return to the writ. NY CPLR 7006(a).  The return is in the form of an affidavit which must fully and explicitly state whether the person detained is, or has been, in the custody of the respondent named in the writ, the authority and cause of the detention, whether custody has been transferred to someone else and the facts and authority for any such transfer. Where the detention is claimed to be justified by a mandate, a copy of the mandate must be annexed to the affidavit….

The return to the writ must be served in the same manner as an answer in a special proceeding.  CPLR 7008(subd.a).  Service is made by service upon the attorney for the petitioner.  CPLR 2103(subd.b).  Where the writ is returnable forthwith, the return is due to be filed within 24 hours of the service of the writ….  McKinney’s DRL §70, C70:8

Based upon time constraints, I sent a young law student working for my office that first day to do the filing; and she was surprised when, at every step, it was almost as if no one was familiar with the proceeding.  The County Clerk’s office, almost didn’t know what to do with the papers; the first Judge assigned, insisted upon changes to the papers; even though not relevant, the ultimate Court insisted that the parties’ divorce agreement and judgment of divorce be part of the petition; and so on.

From my viewpoint, the most important things was making sure that the Writ was signed and returnable as soon as possible and when I, on my client’s behalf, was available, resulting in my having to redraft the Writ and Petition; adding the parties’ agreement and divorce decree as exhibits and bring everything back into Court.  I then explained everything to the attorney assigned to that judge; having to point out that the original Writ, signed by the judge, had to be served upon the respondent(and having the clerk in that part confirm that this was accurate); that I asked for the date(one week later)as the return date, based upon my availability and the practicality of getting service done.  By the end of that date, the Writ was signed and my office was able to get the signed original picked up the next morning.

Of course, the original Writ and a copy of the petition had to be overnighted to the process server, requesting early morning delivery, at extra cost, to make sure that it was served before the return date.  Of course, the overnight delivery service delivered it late [2] ; but, fortunately, we were able to get it there, even though later, so service was properly made.

On the return date, things got more interesting.  First of all, all that I received from my adversary, the mother’s attorney, was a Notice of Appearance.  Then, the mother, through counsel, while having the child in the vicinity of the Courthouse, did not have the child physically present, i.e., non-compliance with the Writ.  The Judge was not immediately available(at a funeral for a fellow judge)and the law secretary conferenced the case.  I was surprised by a number of things; first of, that the law secretary was not incensed by the failure of the child to be physically present in the Courthouse and further detained from my client; and then a statement that once the child was produced, there was full compliance with the Writ and nothing further could be done.  The Judge assigned took the same approach.  I was further surprised when, in conversations with other counsel, learned that this response from a Judge or law secretary was not unique.

To repeat, a quick review of DRL §70 specifically notes that

the court…may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require…In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child…

The failure to have the child physically present in Court is inappropriate, referring to Justice Scheinkman’s commentaries, which notes that

An important facet of a writ proceeding is the ability to request the court, when granting the writ, to require the production of the child in court upon the return date.  The use of this judicial power is particularly appropriate where a person having possession or control of a child is wrongfully interfering the petitioner’s right to custody or ability to be with the child or is actually threatening to abduct the child.  Requiring that the child be produced in court ensures that the court will be able to inquire into the child’s safety, examine the child in appropriate situations, and have the child available so as to permit immediate enforcement of any disposition that the court makes on the return date.

*                            *                                      *

Where the writ does require the production of the child, the respondent, or other person served with the writ who has custody of the child, must produce the child at the time and place specified…CPLR 7006(subd. a).  Where the writ demands production of the child, the statute, on its face, excuses nonproduction only where the child is too ill or infirm to travel….Of course, a respondent who fails to produce the child in response to the writ must be prepared to demonstrate the existence of sufficiently serious hardship.  McKinney’s DRL §70, C70:6

Nowhere is there anything to indicate that once the child is produced, the Writ is satisfied, with no further proceedings.  Instead, DRL §70 specifically permits a full inquiry concerning custody and parenting time!  For a Judge or law secretary or law assistant to suggest otherwise ignores the specifics of the law.  Again, referring to Justice Scheinkman’s commentaries, he has written that

…a writ of habeas corpus may be utilized to obtain–and enforce–visitation rights. Cf. Sandfort v. Sandfort, 278 AD 331, 105 NYS2d 343(1st Dept., 1951).  DRL §70 permits the court to determine questions of custody and visitation is a limited form of custody.  Indeed, the statute itself provides for the court to provide for “such time” with the child as the court finds appropriate.  McKinney’s DRL §70; C70:5

Admittedly, the Judge assigned did locate and appoint a highly skilled Attorney for the Child who was already in the Courthouse; she then spoke to the little girl(who was finally brought into the Courthouse)and, based upon that, the Attorney for the Child reunited father and daughter and the previously worked out parenting schedule was reinstated, informally, as the Judge refused to reduce any specifics to a directions of the Court, as he directed the Writ satisfied when the child is produced.

What should have happened?  Again, referring to Justice Scheinkman’s commentaries, they provide that

Upon the return date of the writ, the court must proceed in a summary manner to hear the evidence and to dispose of the proceeding as justice requires.  CPLR 7009(subd.c)….

*                            *                                      *

The proceeding terminates in a judgment.  CPLR 7010.  An appeal can be taken from a judgment which refuses the writ, from the refusal to issue an order to show cause, or from a judgment made upon the return of the writ or show cause order.  CPLR 7011.  McKinney’s DRL §70, C70:8

So while the end result of the proceeding worked out to reunite and reinstate the father’s parenting time(which, as far as I know, remains in place as I write this), the County Clerk, adversary, law secretary/clerk and judge’s actions where not what was required by DRL §70 and CPLR Art. 70; as if it worked out well in spite of and not because of the actions of the Courts.  The reason for this article is to prevent a repeat of that going forward.

[1] While the facts are as were presented to me and played out in Court, I have intentionally left the parties, the judge and other counsel involved unnamed.

[2] Unofficially know as “Murphy’s Law,” where everything that could go wrong, goes wrong.

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