The Better Chancery Practice Blog

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.  See, Mitchell 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.