In child custody cases, a writ of attachment is an emergency court order for law enforcement to immediately return a child until a hearing can be held. A parent may ask for a writ of attachment if the child is in immediate danger or if the other parent is likely to hide or move the child before a custody hearing.
Writ of Habeas Corpus and Writ of Attachment
If a child is being kept by one parent against court orders, the other parent may file a petition for a writ of habeas corpus. A Writ of Habeas Corpus requires the person with the child to come to court for a hearing. At the hearing, the judge listens to both sides and decides if the child should be returned.
The parent may also ask the court for a writ of attachment if the child may be harmed, hidden, or removed from the state before the hearing can occur. A writ of attachment orders the respondent (person refusing to return the child) to surrender the child to law enforcement.
The Writ of Attachment is given to (served on) the respondent by law enforcement, who will immediately take possession of the child and bring the child to court, the party who requested the writ, or an appropriate agency like Child Protective Services.
Who Can Ask for a Writ of Attachment?
You may ask for a writ of attachment at the same time when filing a petition for a Writ of Habeas Corpus if the child is at risk or the person who has the child is unlikely to obey the Writ of Habeas Corpus.
The following people may file a petition for a writ of Writ of Habeas Corpus:
- Anyone whom a court order gives the right to have possession/custody of the child.
- The parent, when there is no custody order and the child is being kept by someone who is not a parent.
Law enforcement officers may be directed by the court to take immediate action to pick up the child and deliver them to a designated person or agency, such as Child Protective Services, for temporary custody pending further court proceedings.
The court will then schedule a hearing to review the circumstances surrounding the issuance of the writ of attachment and determine the appropriate course of action regarding the child’s custody and welfare.
Relevant Laws: Texas Family Code section 157.372(a), Texas Family Code section 157.376(a).
Conclusion
In the context of child custody cases, a writ of attachment may indeed be used as an emergency measure if a child is in danger or the person is likely to flee with the child before a hearing can be held. If necessary, a parent can ask for a writ of Habeas Corpus and a writ of attachment at the same time.
To request a Writ of Attachment, you must demonstrate that the individual currently in possession of the child is likely to relocate or conceal the child, and is unlikely to comply with the Writ of Habeas Corpus.
