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FAQs - What to do when a Parent Refuses to Follow a Court Order and Return a Child

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This article answers frequently asked questions about your rights to possession of a child when you have a court order for possession but the child’s parent refuses to return the child.  

How can I ask a judge to order a child’s return to me when the parent is refusing to follow a court order?

Getting a judge to sign an order for return of a child to you can be a two-step process.

  • First, ask a judge to sign an order that you have superior right to possession of a child by filing (turning-in) a lawsuit, called a Petition for Writ of Habeas Corpus. If granted, the Writ of Habeas Corpus will require the person that has the child to appear in court with the child.
  • Second, if you need to have a sheriff or constable immediately pick up a child for the child’s return, also ask the judge to sign an order called a Writ of Attachment directing the child’s delivery or return.
    • To ask for a Writ of Attachment, you must show that the person with possession of the child is likely to move or hide the child and not likely to follow the Writ of Habeas Corpus. (However, it may not be necessary to ask for a Writ of Attachment if the child’s safety is not at risk and the person with possession of the child will bring the child to court as instructed to in the Writ of Habeas Corpus.)

Note: The Petition for Writ of Habeas Corpus can ask the judge to sign both a Writ of Habeas Corpus and a Writ of Attachment; the lawsuit can ask for two actions to secure the child’s return. 

What is a Petition for Writ of Habeas Corpus?

A Petition for Writ of Habeas Corpus is a lawsuit where the relator (the person with court-ordered or legal right to possession of a child) asks the judge to sign an order that the relator has superior right to possession of a child to secure a child’s return.

A Writ of Habeas Corpus requires the person with the child to come to court with the child at a specific date and time so that the judge can decide who has a superior right to possession of the child.

Who is the relator?

The person that files the Petition for Writ of Habeas Corpus that is asking the judge to decide that he or she has superior right to possession. 

Who can file (turn in) a Writ of Habeas Corpus?

The following people can file a petition for writ of habeas corpus:

  • Anyone with a court order giving that person a right to possession of a child, or
  • When there is no court order in place, a parent can request possession from a nonparent.

Read the law here: Texas Family Code sections 157.372(a), 157.376(a).

Note: When there is no court order in place, a Petition for Writ of Habeas Corpus cannot be heard between two parents or two or more nonparents.

Who is the respondent?

The respondent is the person that has possession of the child but is refusing to return or deliver the child to the relator. 

How do I start a Writ of Habeas Corpus case?

Talk with a family law lawyer for help starting a Writ of Habeas Corpus case. TexasLawHelp.org does not provide forms for a Writ of Habeas Corpus or for a Writ of Attachment.

Should I file a Writ of Habeas Corpus case if the child’s parent is wrongfully keeping the child for short periods of time such as an extra day or evening?

The purpose of a Writ of Habeas Corpus is to secure the child’s return, not to change existing possession orders or punish the respondent for keeping the child for a short period of time when the child has already been returned to you by the time you get to court.  


If it is likely that the respondent will have returned the child to you before the Writ of Habeas Corpus is signed, file a Motion for Enforcement instead. Talk with a lawyer if you have questions or need advice.

 

Can I hire a lawyer just to give me advice?

YES! You can hire a family law lawyer just to give you advice, provide you forms, review your forms, or help you prepare for the hearing. You may then be able to handle the other parts of your case yourself. Hiring a lawyer for a limited purpose is called “limited scope representation.”
  
You may also be able to talk with a lawyer for free at a legal clinic. If you need help finding a lawyer, you can:
 

Where do I file (turn in) a Petition for Writ of Habeas Corpus?

File (turn in) a Petition for Writ of Habeas Corpus in:

  • A court of continuing exclusive jurisdiction, or
  • A court that can hear a Petition for Writ of Habeas Corpus in the county where the child is located

Note: If you want to file the Petition in the county where the child is located, and not the court of continuing jurisdiction, check with the clerk of the court in the county where the child is located to learn if any local rules prohibit you from filing the Petition in that court. Some courts (Dallas County Family Law Courts, for example) have local rules requiring the case to be filed in the court of continuing exclusive jurisdiction.

Does it cost anything to file (turn in) a Petition for Writ of Habeas Corpus?

Yes. There is a fee to file a Petition for Writ of Habeas Corpus. The fees vary by county. Call the clerk’s office in the county where you will file the Petition to learn the fees. 

Can I ask to have my court fees waived?

If you cannot afford the court fees for your case, you can ask the judge to waive the fees by filing a Statement of Inability to Afford Payment of Court Costs

What is a Writ of Attachment?

A court order a judge signs that requires the respondent to surrender the child to a sheriff or constable so that the child may be delivered to you, the court, or an agency named by the judge.

The Writ of Attachment is given to (served on) the respondent by a sheriff or constable, who will immediately take possession of the child and bring the child to court, to you or to an agency named by the judge.

Remember: If necessary, you may ask for a Writ of Attachment at the same time you ask for the Writ of Habeas Corpus.

Does a judge have to order the child be returned to me?

When you have court-ordered possession of a child, the judge must order the child’s return to you if the judge finds that:

  • you have a court order showing that you have a superior right to possession of a child,
  • the child is being illegally kept from the relator by the respondent,
  • you have not given up possession of the child for six months before the filing of the Petition, and
  • there is no serious, immediate question about the child’s welfare.

Note: An exception exists if the judge finds that the existing court order granting possession was signed even though the parties to that case did not have reasonable notice of the hearing and a right to be heard. In that case, the judge cannot order a child’s return to you based on the existing order of possession.

When there is no court order on possession but you have a legal right to possession of the child, the judge must order the child’s return to you if the judge finds that:

  • there is no suit affecting the parent-child relationship (SAPCR) pending,
  • the child is being illegally kept from the relator by the respondent,
  • you have not given up possession of the child for six months before the filing of the Petition, and
  • there is no serious, immediate question about the child’s welfare.

Note: For Petitions based both on court-ordered possession or legal possession, if you have given up possession of the child for six months before the filing of the Petition or there is a serious, immediate question about the child’s welfare, the judge may grant or deny your request to have the child returned.

Where can I read the law about a Petition for Writ of Habeas Corpus?

Read the law here: Texas Family Code sections 157.371 through 157.376.