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Child Custody and Habeas Corpus

Reviewed 7/01/2022
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Introduction

In some states, a writ of habeas corpus is used secure a child's return in cases where the custody of children is at issue.  New Hampshire is not one of those states. Why are we creating a guide for something that no longer exists in New Hampshire? Because a quick Google search easily brings up those other states and sometimes our library patrons misunderstand and believe they can use this procedure in New Hampshire to retrieve their child.

Although habeas corpus (which literally means "that you have the body") could once be used for child custody disputes in New Hampshire, New Hampshire's adoption of the Uniform Child Custody Jurisdiction Act (UCCJA) in 1979 made the habeas corpus procedure unnecessary in the child custody context.  In 2009, New Hampshire replaced the UCCJA with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), RSA 458-A. 

Below are two states that do allow the use of habeas corpus in custody matters

What is a Writ of Habeas Corpus?

We are more used to reading about habeas corpus in the context of criminal law. According to Black's Law Dictionary, a writ is a court's written order commanding someone to do something or to refrain from doing something. A writ of habeas corpus is a court order demanding that a public official (such as a warden) deliver an imprisoned or detained individual to the court and show a valid reason for that person's detention. So, originally habeas corpus proceedings were intended for those who were imprisoned. 

What are Uniform Laws?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) mentioned above is a uniform law. Uniform State Laws are drafted by the Uniform Law Commission. They are suggested pieces of legislation that individual state legislatures can adopt, perhaps after making minor changes to the proposed language.  Once a Uniform Law is passed by the General Court, it is the law in New Hampshire and it is published in the New Hampshire Revised Statutes Annotated. It is very convenient for many states to have virtually the same statute on a subject area like child custody, where it is likely that there will be interaction between states in enforcing the law.  Uniform laws can eliminate conflict among various state laws on the subject.