SCOPE:

Bibliographic resources relating to the applicability of a writ of habeas corpus in child visitation matters and form preparation and procedure in habeas corpus visitation proceedings.

DEFINITION:

·          “The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common-law writ... The primary purpose is to furnish a means by which the court ... may determine what is best for the welfare of the child.  Howarth v. Northcott, 152 Conn. 460, 464 (1965).

·         “A habeas corpus petition concerning a minor child’s custody is an equitable proceeding in which the trial court is called upon to decide, in the best exercise of its sound discretion, the custodial placement which will be best for the child.” Evans v. Santoro, 6 Conn. App. 707, 709 (1986).

STATUTES:

Conn. Gen. Stat. (2003)

·         § 45a-606  Father and mother joint guardians

·         § 46b-1(8), (9)  Family relations matters defined

·         § 52-466  Application for writ of habeas corpus. Service. Return.

·         § 52-467  Punishment for refusal to obey writ or accept copy.

·         § 52-493  Order in the nature of prerogative writs

COURT RULES

Connecticut Practice Book  (2004 ed.)

·         § 25-40  Habeas Corpus in Family; The Petition

·         § 25-41  --Preliminary Consideration

·         § 25-42  --Dismissal

·         § 25-43  --The Return

·         § 25-44  --Reply to the Return

·         § 25-45  --Schedule for filing Pleadings

·         § 25-46  --Summary Judgment as to Writ of Habeas Corpus

·         § 25-47  --Discovery

FORMS:

·         8 Arnold H. Rutkin et al., Connecticut Practice: Family Law andPractice with Forms  § 43.9 (2000).

·         Mary Ellen Wynn & Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer 175-183 (1991)

CASES:

·         In Re Jonathan M., 255 Conn. 208, 223, 764 A.2d 739 (2001). “The primary issue  in this appeal is whether the habeas petition may be employed as a means of testing the merits of the termination judgment, and not solely as a means of bringing challenges to custody and visitation orders. Although the petitioner’s parental rights have been terminated by a presumptively valid judgment … to foreclose, on jurisdictional grounds, his ability to seek custody and assert subsequent challenges to the termination judgment, whether through a petition for a writ of habeas corpus or other means, would require a circular course of reasoning in which we are unprepared to indulge.”

·         Weidenbacher v. Duclos, 234 Conn. 51, 73, 661 A.2d 988 (1995).“… we hold that the mere fact that a child was born while the mother was married is not a per se bar that prevents a man other than her husband from establishing standing to bring an action for a writ of habeas corpus for custody of or visitation with a minor child.”

·         Doe v. Doe, 163 Conn. 340, 307 A.2d 166 (1972).  The court held that only parents and legal guardians have standing to bring an action for habeas corpus seeking visitation rights.

·         Evans v. Santoro, 6 Conn. App. 707, 709, 507 A.2d 116 (1986). “In order to invoke the aid of a habeas corpus writ to enforce a right to physical custody of a minor, the applicant for the writ must show a prima facie legal right to custody… Once the writ has issued, the burden of proving that a change of custody would be in the child’s best interest rests upon the party seeking the change… In this case, that party was the petitioner.”

·         Axelrod v. Avery, Superior Court, judicial district of New London at New London, Docket No. 532395 (Dec. 1, 1994), 13 Conn. L. Rptr. 124, 1994 Conn. Super. Lexis 3058.  “The language of Nye arguably extends standing in habeas corpus petitions from the narrow construction in Doe to a broad construction which include members of a child’s biological family... Moreover, a finding of standing is appropriate on the facts ... because the plaintiffs have a sufficient ‘personal stake in the outcome of the controversy,’ namely the custody of their granddaughter and the maintenance of a familial relationship with her.”

·         Forestiere v. Doyle, 30 Conn. Supp. 284, 288, 31 A. 2d 607 (1973).  Plaintiff father’s petition for a writ of habeas corpus seeking visitation rights  “... to deny him visitation rights without a hearing on the ultimate question of what is best for the welfare of the child is to deny him his constitutional rights.”

WEST KEY NUMBERS:

·         Habeas Corpus #532 (1,2)

TEXTS & TREATISES:

·         8 Arnold H. Rutkin et al., Connecticut Practice: Family Law andPractice with Forms §§ 43.8—43.9  (2000).

·         Family Law Practice in Connecticut 10-37, Law Practice Handbooks, Inc. (1996).

·         1 Sandra Morgan Little, Child Custody & Visitation Law and Practice § 6.06 (2004).

LAW REVIEWS:

·         Paul J. Buser, Habeas Corpus Litigation in Child Custody Matters: An Historical Mine Field, 2 Journal of the American Academy of Matrimonial Lawyers,  Winter 1993, at 1. 

(available at the Norwich Law Library)

COMPILER:

Barbara J. Bradley, Law Librarian, Connecticut Judicial Department, Law Library at Norwich, One Courthouse Square, Norwich, CT 06360. (860) 887‑2398. EMAIL: barbara.bradley@jud.state.ct.us.