July 14, 2010 § 16 Comments

Habeas corpus is the ancient writ that extends ” … to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto …”  §11-43-1, MCA. 

In Chancery Court, habeas is most often used where one person is withholding custody of a child or a ward from the person who is legally entitled to custody.  This post will focus on Chancery cases involving deprivation of custody, and not on illegal detention by the state.

The procedures for habeas are purely statutory, and are specifically excepted from Rule 81, MRCP. 

The first step in obtaining the writ is to file a petition with the court.  The petition must be sworn, describing where and by whom the person is being detained, the facts and circumstances of the restraint, and the ground for the relief sought.  §11-43-9, MCA.  Venue is proper in the county where the person is being detained, not in the county where a prior judgment of custody was entered.  Logan v. Rankin, 230 Miss. 749, 94 So.2d 330 (Miss. 1957).   

Next, the petition is presented to the court.  Some judges require that the petitioner appear personally to testify in favor of granting the writ.  This judge will issue the writ without testimony of the petitioner if the petition is in proper form, is sworn, and includes each and every element required in §11-43-9, MCA.

If the Chancellor deems the petition adequate, he or she will sign an order directing the clerk to issue the writ.  The Chancellor may issue the writ also.  §11-43-15, MCA.

The usual form of the writ is as follows:

“THE STATE OF MISSISSIPPI, to:  _____________________

WE COMMAND YOU to have the body of ___________________, by you detained, as it is said, before __________, a judge of our _____________ Court, at _____________, forthwith (or on a given day), to do and receive what may be then and there considered concerning him.  Witness my hand, etc.”  §11-43-17, MCA.

The writ is served, and the return made, as with process, by any person whom the court may direct or by the sheriff or any constable.  §11-43-17, MCA.

The person upon whom the writ is served is required to have the person for whose benefit the writ is issued personally before the court at the appointed time.  §11-43-27, MCA.  The court may, however, order immediate apprehension of the person in whose behalf the writ is sought, if the court is satisfied from the sworn allegations or testimony that the person will be removed or concealed so as not to be produced with the writ.  The sheriff or designated person in such a case is directed to take the person into custody and to deliver the person to the court at the appointed place and time.  The statute sets out the required language for the writ in such cases.  §11-43-21, MCA.

The writ may be served on a Sunday in event of an emergency.  §11-43-21, MCA.

The writ is returnable forthwith, or on a particular day within a reasonable time.  §11-43-23, MCA.

§11-43-31, MCA, sets out penalties for disobedience of the writ.  The respondent who disobeys the writ may be ordered to pay the person for whose benefit the writ is issued a penalty of $1,000, and the disobedient party may be punished for contempt.  §11-43-31, MCA.

At the time set for return of the writ, unless the detaining party agrees to release the person detained, a hearing is held to which witnesses may be subpoenaed, and testimony and evidence is taken as at other trials, and the court may continue the case from day to day as the case may require.  §§ 11-43-33 and -39, MCA.  Interestingly, testimony of a witness may be offered by affidavit “whenever the personal attendance of a witness can not be procured,” provided that the affidavit is taken on reasonable notice to the other party.  §11-43-39, MCA.  The court may award “costs and charges, for or against either party, as may seem right.”  §11-43-33, MCA.   

The court may make temporary orders.  §11-43-35, MCA.

The court’s judgment is final, binding and appealable.  §§11-43-43, -53 and -55, MCA.  The habeas court does not have continuing jurisdiction to modify its award.  SeeMitchell v. Powell, 179 So.2d 811 (Miss. 1965).  The jurisdiction of the Chancery Court in a habeas proceeding is temporary in nature.  See, Pruitt v. Payne, no. 2008-CA-00172-COA (Miss. App. 2009). 

Habeas is not to be used as a mechanism to modify prior custody decrees.  Fulton v. Fulton, 218 So.2d 866, Miss. 1969).  In the case of Wade v. Lee, 471 So.2d 1213, 1217 (Miss. 1985), however, the Mississippi Supreme Court carved out an exception so that the petitioner or respondent may use a habeas hearing to obtain temporary custody if the custodial parent has abandoned the child or become “altogether unfit” to have custody.  In such a case, the court should set an expiration date for the temporary order in order to give the parties an opportunity to file appropriate pleadings for modification in the court having jurisdiction to entertain the case.    

An observation:  It is unfortunately frequent that attorneys come to a habeas hearing and try to present a modification case, with its evidence of material change, adverse effect and best interest.  The proper standard in a habeas hearing to achieve a temporary change in custody, however, is to produce proof that the custodial parent is “altogether unfit” or has abandoned the child, and proof that falls short of that standard will result in the child being returned to the custodial parent.  If the proof only supports a modification action, that is the procedure that should be used, and not a habeas proceeding.

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  • kim says:

    Good day Judge,
    I was wondering would Habeas Corpus be appropriate if CPS (formerly DHS) took the children with no orders, said the “Judge gave verbal”, and no phone call. The children were left in the care of the minors grandparent and remained in that care in a hotel until the shelter hearing. So technically they didn’t even remove the children from the parents if they were removing them based on “imminent danger”, the mother of the children in question was having her child when her mother called and said she was taking her kids and to be at court at such and such time and date. CPS never even called the mother and father to tell them they were taking the children. CPS and the Grandmother held the kids at a hotel until the shelter hearing. These parents didn’t even get to have a real adjudication hearing nor allowed to have a disposition hearing or permanency hearing, the youth court judge just made orders with no hearing at all

    • Larry says:

      I don’t second-guess judges for obvious reasons, but mainly because the judge knows all the facts she considered, and I don’t know those facts. That being said, the person with entitlement to custody always may invoke habeas.

  • Jeffrey Knight says:

    Is a habeas proceeding proper course of actions. when dealing with removal of the child by DHS and the Youth Court failing to hold an adjudication hearing within the required 90 days, thereby losing jurisdiction.

    • Larry says:

      I would think so.

      • Jeffrey Knight says:

        I have seen it done where both DHS and the youth court and even foster parents are made parties. However I can’t seem to make a decision on who to include but I think I’m leaning just DHS bc they are the only one who has legal custody. Would be grateful for your input bc your opinions and articles have saved me countless hours. Thanks

      • Larry says:

        I would think that every person and entity having custody and/or guardianship must be made a party.

      • Edward Gibson says:

        I am working on this and contemplating the same where a divorce and custody case have devolved into youth court recriminations. Neither the post nor Chapter 43, (as I can tell) contemplate service or notice of the Petition for the Writ. Rule 81 specifically excludes it. By its nature, the application for the Writ seems an emergency or ex parte matter, so that makes sense to me.
        No notice required to any respondent, or the non-petititoning parent. Correct?

      • Larry says:

        A writ is by definition an order. The writ orders the person having the body to deliver it to the court. Ergo, personal service is required. The writ may be returnable immediately; 5-7 days’ notice is not required. It is a priority case.

      • Jeffrey Knight says:

        Well I will say this, I chose to just be on the safe side and include everybody; however, it didn’t really matter much because the Chancellor shot it down and sent it back to youth court. No adjudication hearing for a over a year continued for due to an overcrowded Docket and after several months of no hearing, I filed in Chancery and my Petition was dismissed in minutes because Youth Court doesn’t automatically lose jurisdiction if the hearing isn’t held in 90 days. It was one of those impossible situations without any real remedy until now after the adjudication hearing, a year later. Good luck

  • thusbloggedanderson says:

    I should look this up, but is there some general rule against service of process on Sundays?

  • Hi Judge. Thank you for this blog. I think it is great and have recommended it to many attorneys. I am wondering about habeas corpus proceedings and the proper venue. I thought I knew the answer but have been told by others that I’ve missed the mark. Father had sole custody of children and mother had visitation rights. The father died and the stepmother takes children out of state. I think proper venue for the petition would be in the state where the children currently are. Others are advising that since the children lived so long in a certain county in MS and only recently were moved to the other state, that the proper venue is in that MS county. Comments appreciated.

    • Larry says:

      MCA 11-43-9 provides that the petition shall be filed in the district “where the relator is imprisoned,” which as to child custody I take to mean the district where the child is being detained.

      That being said, I did once successfully regain custody of children via a habeas I filed in Lauderdale County where the children were being held in Winston County. There was a pending divorce, and the other side never raised any venue issue. If they had, the statute requires the chancellor to transfer it to the correct district.

      Also, I think Chancellor Neil Harris of Pascagoula was affirmed within the past couple of years in a case with facts similar to yours. I believe the respondent had relocated with the child to Colorado. If you can’t find it otherwise, give him a call, and he can point you to the case. Tell him that I suggested that you call him. I hope i got the facts straight.

      The only other thing I can add is that if the taking of the child was within the past 6 months, you have a good argument under the UCCJEA that Miss has jurisdiction because no other state has a viable home state claim, the snatching was done in Miss (if it was), and the UCCJEA specifically does not countenance child snatching. Also look at Pruitt v. Payne for authority that a stepparent has no right to the child, and that was in a habeas setting.

      Good luck.

  • Robin Hood, Byram says:

    Argh! That last bit about temporary custody and custody modification and altogether unfitness and material adverse changes was exactly what I needed to know… I don’t think I can QUITE show altogether unfitness of the other other parent, but there has certainly been changes adverse to the child’s best interest to support a custody modification. Is there no way to get temporary custody while awaiting the final trial on custody modification, short of proving the custodial parent to be altogether unfit?

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