Habeas Help in Custody situation

[planetmark]

This is a request for info on this habeas corpus process, as it relates to child custody issues. The state has written a whole chapter in the revised statues to detail "their" habeas corpus. How does one differentiate between theirs and the one guaranteed in the Constitution, (which I'm not sure I completely understand why it's called a 'privilege')?

Article I, Section 9, Clause 2.
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

I've completed nearly all of the processes and administrative remedies described here on the forum, and I believe my paperwork is sound. I have sent the ex a letter explaining that according to our agreement, the children are to return to the family home with me immediately, and I will be showing up on June 17 to get them. She should be getting that today or yesterday. I think she will just stubbornly ignore me, and when I show up she will likely call the police. I will be contacting them ahead of time anyway to let them know she may be calling. But I want to give this a shot before involving the courts.

In the event that this fails, and she won't turn them over, I'm thinking habeas corpus, as she has NO legal authority to be depriving me of a relationship and contact with my own children. So, is there any specifics that need to go into the HC to prevent this reverting back to a statutory custody battle? I want it to be clear to the court going in that I only want/need them to give the police permission/orders to go get my children. I'm not asking them to give my children back, or make any rulings or determination on custody. I've finished that process, and just need orders for the police to comply with.

Can somebody assist me with the drafting of this document, and/or assist with handling the process? I'm mostly stuck with the wording and format, and that type of technicality... again. Implementation of the final stage is always the hardest part it seems.

[mrg]

Planetmark:

I am not sure habeas is applicable in your situation.
I do not know though.

I also do not know if this will help or if you have time or need of it but here it is from the horse's mouth:

The Habeas Corpus Act, King Charles II 1679
http://www.lonang.com/exlibris/organic/1679-hca.htm

[scooterdog]

This petition was used by a father to force law enforcement officers to help the father to obtain his children. The motion to obtain his childre through an order of protection preceeding the application of this petition for writ, is above.

COMES NOW [Name Here], Respondent/Father herein, and petitions the Court for a Writ of Habeas Corpus and alleges as set forth below:
I.
That [Name Here] is the Respondent herein and this motion is presented in connection with an order for a Petition for Order For Protection Filed and dated May 22, 2001 and pursuant to a Temporary Order For Protection and Notice of Hearing, entered, in this matter, and signed by an Ex Parte Commissioner, on that same date. (Please See Attached)
II.
The Respondent/Father, [Name Here], and the Petitioner/Mother [Name Here], are the parents of [Childrens Names Here]. The parents were divorced on April 13, 1990, in [County and State Here]. The decree of dissolution called for the Petitioner/Mother to have custody of the parties' minor children.
III.
Recently, the Respondent/Father Petitioned the court for a protection order on May 22, 2001. Said Petition was based upon a history of seriously violent acts of domestic violence on the part of the childrens' Mother and her new husband; resulting in the children witnessing their mother holding a loaded gun at the head of her new husband. And, said petition was based upon the Petitioners' husband completely destroying the interior of the childrens' home; the children being witness to the results of said destruction. A court commissioner issued a restraining order, dated May 22, 2001 and set a hearing date on said order, scheduled for June 5, 2001. The order instructed local law enforcement agencies to assist in obtaining the children for the Father.

IV.
Law enforcement agencies refused to assist the Respondent/Father in obtaining his children and informed both Petitioner and the Respondent that a "Writ of Habeas Corpus" is necessary for law enforcement to intervene.

V.
The children have been, and are still in imminent physical danger from the Mother, her new husband, and from the environment with which the children are exposed.

VI.
There is currently a Petition for Modification of Custody, in this matter, before the court. (See Attached)

WHEREFORE, the Respondent/Father prays that a Writ of Habeas Corpus issue directing the Sheriff of [Name of County Here], or any other peace officer of the State of [Name Here], to obtain custody of [Name children Here], and immediately deliver all of the children to the Respondent/Father, pending a hearing on Order for Protection, set for June 5, 2001, at 9:30 AM.

DATED this 27th day of May, 2001.

_______________________________
[Name Here], Respondent/Father

STATE OF [Name] )
) ss.
COUNTY OF [Name] )

[Name Here] being first duly sworn, on oath deposes and says:

I am the Respondent/Father in this action; I have read the within and foregoing Petition for Writ of Habeas Corpus, know the contents thereof, and believe the same to be true.

TYPE: ORDER TO ISSUE WRIT OF HABEAS CORPUS AND WARRANT IN AID OF WRIT OF HABEAS
CORPUS

INFO: This order is pursuant to the aforementioned Petition for Writ of Habeas Corpus.

ORDER TO ISSUE:
THIS MATTER having come before the Court on the Respondent/Fathers' motion for issuance of a Writ Of Habeas Corpus and a Warrant in Aid of Writ of Habeas Corpus, Respondent appearing, the Court having reviewed the records, files, affidavits, and heard argument of Respondent, and deeming itself fully advised, NOW THEREFORE, it is hereby
ORDERED, ADJUDGED, AND DECREED that a Writ of Habeas Corpus and a Warrant in Aid of Writ of Habeas Corpus be issued, directing the Sheriff of [Name of County and State], or any other peace officer of the State of [Name] to locate and take the children, [Name children here], into immediate custody and to deliver all of the children to the Respondent/Father, pending a hearing on Order for Protection, set for June 5, 2001, at 9:30 AM, and it is further

ORDERED, ADJUDGED, AND DECREED that said peace officers may break and enter any residence, building, structure, or vehicle in which they have reason to believe the children are located or where information pertaining to the location of the children may be found, and it is further


ORDERED, ADJUDGED, AND DECREED that said officers may arrest any individual who stands in the way of obstructs their rightful attempts to obtain the immediate custody of said children, [Name children here], and it is further

ORDERED, ADJUDGED, AND DECREED that the Sheriff of [Name County and State Here], or any other peace officer of the State of [Name] may not release [Name of children here] to any other person, other than the Respondent/Father.

[Freedomless]

Lot's of case references here.

http://www.antipeonage.0catch.com/

[planetmark]

Scooterdog,

Given the fact that the ex just filed a restraining order against me because I told her I was going to come get the children (domestic violence? sheesh. Definition of "ex wife" means "She' no longer domestic!" Duh.), and given the fact that she has not had any reportable acts of overt violence against the children (pychological, mental, and emotional, yes! but how do you prove that?), what are your thoughts on me trying to use something like what you posted above?

Is it really just that short of a petition? Just throw that out there, and see what happens? I tend to want to over do things, and spend hours and hours, and days, trying to perfect it and cover every detail.

[scooterdog]

If you Inst. Message me what books I sent you, I can send you the right ones if I haven't.

You NEED to get that restraining order kicked. This is where I completely, 10000% disagree with contracts and what ever else someone throws out there. This is where the Judge is goiing to be swayed.

If you beat this down, and do your writ right, you could be well on your way to a successfull case. I would be real carefull talking contract and what not, as you may find yourself in a padded cell. The Judge CAN AND WILL DO THAT! Make no bones about it, your in FAMILY COURT! I have full custody because I followed the family court rules the way it needed to be done. Since that time, I have watch coutless men loose any visitation they had, pay outragouese amounts in support, ect..., But none of them understood what kind of court they were in, and it is a obviouse as the day is long, there are alot of people in this forum not understanding family court, and in my opinion, are going to get you in a situtation that going to cost you everything.

[scooterdog]

Planetmark:

Are you saying in your post above, that this woman is unstabel??? Never heard of an unstabel woman before lol.

You don't have to prove anything. You can easily ask for an evaluation, make the court order her to do it. The problem is, you have to KNOW they are going to find something wrong with her or it will blow up in your face.

In my order, for my sons mother to even VISIT him, would have to undergo a drug/alc./ mental evalutation. Even IF she got past that, I still have to "agree" to it. Just isn't going to happen. There's a song that goes "I've never killed a woman before, but I know how it feels". (Orginaly directed at Margret Thatcher, which depicted decapitating her in a painting, which was banned in England)