As part of our appellate practice, clients often come to us asking what they can do after they suffer an unfavorable ruling in the trial court. Most people are familiar with a traditional appeal (challenging the trial court’s final order in the courts of appeals). But a traditional appeal is not available in all family law cases and sometimes other appellate remedies are necessary.
For example, traditional appeals are typically not allowed from child support and possession enforcement orders. Because these orders often include penalties of contempt, which sometimes means jail time, these are some of the most common orders that people what to challenge. But what can you do?
The appellate relief in contempt cases is called a writ of “habeas corpus” (Latin for “that you have the body”). The Supreme Court and the courts of appeals have jurisdiction to issue writs of habeas corpus in cases in which a person’s liberty is restrained (meaning jail) because the person violated an order, judgment or decree (child support or possession for example) in a civil case. Because personal liberty is at issue, habeas corpus proceedings are expedited in appellate courts.
There are several bases on which a writ of habeas corpus may be granted including (1) lack of jurisdiction by the trial court, (2) violation of due process, (3) inadequate or no notice, and (4) if there is no proof that the contemnor violated the trial court’s order. But, if the contempt order does not involve physical restraint (i.e. jail), then mandamus (the subject of my post next week), not habeas corpus is the appropriate way to challenge the trial court’s order.
Time is of the essence when it comes to a writ of habeas corpus. You do not want either yourself or a loved one sitting in jail any longer than necessary. If you think that this remedy might be appropriate in your case, contact an attorney with experience in family law appeals immediately.