TOOL OF THE DAY: Habeas Corpus Motion Sample
CATEGORY: Family Law Procedure
Are you facing a hearing where the court is threatening to hold you in contempt for not giving in to demands for a psych eval, custody eval, social study or something else that invades your privacy? Everyone could use a little protection when they are going against abuse of power.
“One has the moral responsibility to disobey unjust laws.” ~Martin Luther King, Jr.
If you believe that the court did not satisfy the requirements of the law to make the demands they have made in an order against you like the requirement that you are ORDERED to submit to a psychology evaluation, a child custody evaluation, or to pay for a GAL that is appointed despite your objections, and you have presented a proper defense, the following habeas corpus motion sample might be helpful for you.
This is a good thing to have ready to file if you are planning to not give in to the demands of the judge. We are posting this because there has been such appalling abuse of power throughout the entire system and process, parents have been left in the dark not knowing how to protect themselves when abuse of power acts on their threats, and parents have been left with no legal help who will tell them that they can protect them when they refuse to consent.
So if you are asserting your parental rights as defined by both the United States Supreme Court and your own appellate courts (if there are any supportive rulings in your state), you are going to want to keep a completed habeas with you every hearing.
Some parents give one to an attorney they are ready to retain if the court follows through with threats to throw them in jail. Some parents have given these to their parents or siblings and told them to be ready to file if they are thrown in jail by the judge. Parents who are fortunate enough to have found an attorney who will protect their rights give this to their attorney so that their attorney has an idea of how they might argue just in case they aren’t experienced with arguing parental rights for someone in their situation before.
We recommend that you have an attorney look at the one you plan to file if you are doing this on your own before you go to the hearing so that you can be sure that you know the proper procedures and that the motion fits the format and rules for your state, including those in the state that the sample uses. We do not guarantee that this is sufficient to get you out of jail. Do your due diligence to cross your t’s and dot your I’s but this should get you started.
You might notice that we have put into this habeas some United States Supreme Court opinions, basic argument, and legal process by which you can request to be freed. Feel free to add and change anything that is more suitable to fit your specific situation.
Below you will find a sample argument and shell of a writ for habeas corpus. This is a sample of a legal document that would be filed with the Appellate Court to get them to remove you from jail when falsely imprisoned.
[IN APPELLATE COURTS THERE IS TYPICALLY A COVER PAGE REQUIRING SPECIFIC DETAILS OF THE CASE. THERE ARE OFTEN FORMS THAT THE APPELLATE COURT WILL PROVIDE THAT COVER SPECIFIC ADMINISTRATIVE DETAILS REGARDING THE CASE. THIS VARIES FROM STATE TO STATE AND EVEN SOMETIMES FROM APPELLATE DISTRICT TO APPELLATE DISTRICT]
[IF STILL INCARCERATED THE FILING MUST BE A WRIT OF HABEAS CORPUS, IF NO LONGER INCARCERATED THE FILING MUST BE A WRIT OF MANDAMUS. THIS IS THE RULE IN TEXAS AND IS LIKELY THE RULE IN ALL STATES, HOWEVER, THIS SHOULD BE CONFIRMED THROUGH LOCAL RESEARCH OF APPELLATE CASES]
WRIT OF HABEAS CORPUS
Now comes _________________ , Relator herein, and requests that the Appellate Court release her from confinement at _____________________ , that the Court find the contempt order ___________________________ , void on constitutional grounds, that the underlying order ___________________ granting grandparent visitation be found void, and that the Trial Court be enjoined from further depriving Relator of her fundamental constitutional rights. Relator asserts:
1) Trial Court abused its discretion and violated Relator’s constitutional right to due process by denying a fundamentally fair process for asserting her rights.
2) Trial Court abused its discretion and violated Relator’s parental right to make decisions for her minor child.
3) Trial Court abused its discretion when ordering grandparent visitation.
4) Trial Court abused its discretion when ordering contempt on its void order
5) That the Nebraska Statute ___________________ used in this case is unconstitutional on its face and as implemented in this instance.
Relator would show the following in support thereof.
Fundamental Liberty Interests
Fit parents have a fundamental constitutional right to determine who their child associates with. State judges cannot normally infringe upon that right even if the judge believes he can make a better decision. See Troxel v. Granville, 530 US 57 – Supreme Court 2000, (As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made.)
Under the North Dakota Constitution Article 1 Section 1 and section 12, parent’s rights are of the highest order and constitutionally protected. The North Dakota Supreme Court requires that any challenges to parental rights be reviewed under strict scrutiny. This means that the North Dakota statute must be presumed invalid, that the State must prove a compelling interest before it can intervene in parental rights, further laws governing that intervention must be narrowly tailored to the compelling interest, and the outcome of that intervention must be the least restrictive outcome possible. See Hoff v. Berg, 595 NW 2d 285 – ND: Supreme Court 1999, which is cited by the United States Supreme Court in Troxel v. Granville:
The pursuit of happiness guaranteed by N.D. Const. art. I, § 1, includes “the right to enjoy the domestic relations and the privileges of the family and the home … without restriction or obstruction … except in so far as may be necessary to secure the equal rights of others,” which is protected and insured by the due process clause of N.D. Const. art. I, § 12. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 919 (1943). This Court has often addressed the constitutional nature of parents’ rights in making decisions in the course of raising their children. Parents have a fundamental, natural right to their children which is of constitutional dimension. In re L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573; Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D.1981). The right is paramount. In re R.D.S., 259 N.W.2d 636, 638 (N.D.1977). A parent’s paramount and constitutional right to the custody and companionship of their children is superior to that of any other person. Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986); Hust v. Hust, 295 N.W.2d 316, 318 (N.D.1980); Boeddeker v. Reel, 517 N.W.2d 407, 409 (N.D.1994). “Keeping State intervention in the matter of child rearing to a minimum, consistent with necessity, is essential to the American ideal.” In re R.D.S., 259 N.W.2d at 639.
It is beyond question in this jurisdiction that parents have a fundamental constitutional right to parent their children which is of the highest order…. Only a compelling state interest justifies burdening the parent’s fundamental right to enjoy a relationship with his or her child, and the state must bear the burden of demonstrating the necessity for doing so in this instance.
[Cite your case law supporting your refusal for the studies or evaluator, etc..]
Both the United States Supreme Court and (list your state supreme court and any appellate courts in your state) have ruled that Judges may not intervene in these instances without first proving a legitimate state interest and finding the parent unfit or a clear and present danger. The Trial Court therefore abuses its discretion when it finds in contempt and incarcerates ______________ for not consenting to submit to _______________________________[List the what the order says you have to do] and follow its VOID order granting the GAL/psychologist/custody evaluator inappropriate authority.
Due Process and Fundamental Fairness
The United States Supreme Court has found that before a Court may incarcerate an individual for contempt, that individual must be afforded fundamentally fair procedures to comply with the due process requirements of the Fourteenth Amendment. In some cases that means that the accused if indigent must be afforded an attorney to defend them. Mrs./Mr. __________________ was denied access to an attorney and the procedures provided by the Trial Court failed to reach the minimum standard for a fundamentally fair procedure. Relator was not informed that she/he had a fundamental constitutional right to make decisions concerning her/his child.
The Judge in this instance assumed that the Statute in question _______________ was constitutional and that he had authority to find Relator in contempt without first proving the parent unfit as well as applying proper rule of law before defaulting to a statute without first balancing it with the constitutional protections of these fundamental rights to be free of state interference in the private decisions regarding one’s child, and proving beyond a reasonable doubt that Relator violated a constitutional statute. See Turner v. Rogers, 131 S. Ct. 2507 – Supreme Court 2011, (The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause.)
Just as in Turner, fundamental fairness is the minimum bar and that bar has not been met in this instance.
When the Trial Court finally got around to appointing a public defender for Relator and scheduled a hearing on her confinement on, ______________date_________ the Trial Court then failed to hold the hearing on the record with Relator present but instead held a closed door meeting with attorneys. At a minimum due process requires the right to be heard on the record, to call witnesses, and to cross examine witnesses. Relator was denied any semblance of due process in these proceedings and remains incarcerated without benefit of a hearing where she/he is represented by counsel on the record such that the Appellate Court might review the record.
In this instance the Trial Court grossly violates its discretion and acts outside its constitutional authority in holding Relator in contempt and confining her/him.
As a fit parent Relator has every right to determine with whom her/his child associates and, without proving a compelling state interest to counter her/his decision that ________________[LIST WHAT YOU ARE OBJECTING TO psych eval, appointment of GAL, custody evaluatior, etc.]. Relator acts completely within her/his constitutional authority in this instance while the Trial Court acts completely outside of its constitutional authority. For these reasons listed above Relator prays the following:
____NAME____________ , Relator, prays that this writ be in all things granted, that Relator is within her/his constitutional authority to not submit to a custody evaluator/psych eval, etc, that the Trial Court is without authority in this instance to intervene in Relators rights, that Relator be immediately released from confinement, and that the contempt order and the underlying order imposing these privacy violations be found void and a nullity.
[CERTIFICATE OF SERVICE]
[WE ARE NOT ATTORNEYS AND ARE NOT POSTING THIS AS A PROPERLY OR LEGALLY FORMATTED DOCUMENT. THIS IS INTENDED AS RESEARCH THAT IS OF VITAL PUBLIC INTEREST NECESSARY TO STOP JUST THE KIND OF INJUSTICE COMMITTED HERE. THIS IS PROVIDED AS A RESEARCH PRODUCT FOR YOUR ATTORNEY TO USE. THIS IS ALSO A POLITICAL STATEMENT TO ALL FAMILY COURTS AND ATTORNEYS WHO ARE INVADING FAMILY PRIVACY FOR THE PURPOSE OF DIGGING UP SOMETHING YOU CAN USE AGAINST A PARENT AT LOWERED STANDARDS NOT ALLOWED BY THE CONSTITUTION. THIS POST IS PART OF LETTING THOSE WHO ABUSE THEIR POWER OR USE THEIR STATION TO GET THOSE IN POWER TO ABUSE IT, CAN AND WILL BE CHALLENGED IN THE PUBLIC FORUM.]
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Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
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Disclaimer: I am NOT an attorney or a lawyer. I do NOT practice law in any federal or State court system. Any information provided by me to you, regardless of how specific, is NOT intended to be legal advice under any state or federal law. I provide research, written strategies, and non-professional personal opinions on the Constitution and State laws as free exchange of politically important information that also serves an important public need and interest allowed under the First Amendment. You are highly encouraged to engage an attorney in your State to help you with the specifics of your legal issues and the law in your State. If you are a pro se litigant then you bear all and full responsibility for understanding the law in your state and acting under the law in your state. Nothing you receive from me is intended to be a “legal” document for purposes of any type of filing in any court. You are free to use my words for your personal non-commercial benefit, or as an aide in petitioning your government for redress of perceived wrongs, if properly cited where appropriate. YOU TAKE SOLE RESPONSIBILITY FOR ANY LEGAL ACTIONS YOU PURSUE AND THE RESULTS THAT YOU GET. I BEAR NO RESPONSIBILITY FOR YOUR RESULTS. MY OPINIONS ARE NOTHING MORE THAN MY PERSONAL NON-PROFESSIONAL OPINIONS OR BELIEFS. I MAKE NO CLAIMS OF LEGAL COMPETENCY IN THE LAW UNDER ANY GOVERNMENT STANDARD OF COMPETENCY IN THE LAW.
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