§ 1. Introduction SUPREME COURT § 1. Introduction Research References Total Client-Service Library References Encyclopedias and Texts 39 Am Jurisprudence 2d, Habeas Corpus §§ 91-93, 118. Practice Aids 22 Am Jur Trials 347, Child Custody Litigation. Federal Statutes 28 U.S.C.A. §§ 2241, 2254. Digests and Indexes L Ed Digest Habeas Corpus §§ 5, 39. Research Sources The following are the research sources that were found to be helpful in compiling this annotation. Law Review Articles Halperin, Federal Habeas Corpus and the Mapp Exclusionary Rule After Stone v Powell. 82 Colum L Rev 1, Jan, 1982.
[a] Scope
[b] Related matters
[c] Pertinent provisions of 28 U.S.C.A. §§ 2241, 2254
§ 2. Summary
§ 3. State court order involving child custody
§ 4. Pending or available state court proceedings relating to child custody
§ 5. Involvement of Federal Government in allegedly illegal custody
TABLE OF COURTS AND CIRCUITS
Lehman v Lycoming County Children's Services Agency (1982, US) 73 L Ed 2d 928, 102 S Ct 3231--§ 3
FIRST CIRCUIT
Donnelly v Donnelly (1975, CA1 Mass) 515 F2d 129--§ 3
Sylvander v New England Home for Little Wanderers (1978, CA1 Mass) 584 F2d 1103, 49 ALR Fed 563--§ 3
SECOND CIRCUIT
Moore-Beidl v Beaudoin (1981, ND NY) 553 F Supp 404--§ 3
THIRD CIRCUIT
Lehman v Lycoming County Children's Services Agency (1981, CA3 Pa) 648 F2d 135--§ 5
Yack v Grimes (1981, ED Pa) 531 F Supp 244--§ 3
SIXTH CIRCUIT
Castorr v Brundage (1982, CA6 Mich) 674 F2d 531--§ 3
Huynh Thi Anh v Levi (1978, CA6 Mich) 586 F2d 625--§ 4
Westerville v Kalamazoo County Dept. of Social Services (1982, WD Mich) 534 F Supp 1088--§ 3
Young v Minton (1972, WD Ky) 344 F Supp 423--§ 3
EIGHTH CIRCUIT
U.S. ex rel. Mueller for and on Behalf of Mueller v. Missouri Div. of Family Services, 123 F.3d 1021--§ 3
NINTH CIRCUIT
Le Thi Sang v Levi (1977, ED Cal) 426 F Supp 971--§§ 4, 5
Nguyen Da Yen v Kissinger (1975, CA9 Cal) 528 F2d 1194--§ 5
ELEVENTH CIRCUIT
Martin v Chiles (1991, SD Fla) 763 F Supp 1133--§ 5
Wisconsin Potowatomies of Hannahville Indian Community v Wilsey (1974, MD Fla) 377 F Supp 1153--§ 4
UNITED STATES
28 U.S.C.A. § 2241. See §§ 1[c], 3, 5
28 U.S.C.A. § 2241(c). See § 4
28 U.S.C.A. § 2241(c)(3). See § 5
28 U.S.C.A. §§ 2241, 2254. See §§ 1[a, c], 2-4
28 U.S.C.A. § 2254. See §§ 1[c], 3, 4
28 U.S.C.A. § 2254(a). See § 3
LOUISIANA
Blaine v Granger (1993, La App 3d Cir) 616 So 2d 860--§ 3
ARTICLE
[a] Scope
This annotation collects and analyzes the federal cases which have discussed the issue of whether, in child custody cases, federal habeas corpus relief is available under 28 U.S.C.A. §§ 2241, 2254
[b] Related matters
Significant connection jurisdiction of court to modify foreign child custody decree under §§ 3(a)(2) and 14(b) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §§ 1738A(c)(2)(b) and 1738A(f)(1). 67 ALR5th 1.
Inconvenience of forum as ground for declining jurisdiction under § 7 of the Uniform Child Custody Jurisdiction Act (UCCJA). 21 ALR5th 396.
Pending proceeding in another state as ground for declining jurisdiction under § 6(a) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(g). 20 ALR5th 700.
Parties' misconduct as ground for declining jurisdiction under § 8 of the Uniform Child Custody Jurisdiction Act (UCCJA). 16 ALR5th 650.
Home state jurisdiction of court under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(c)(2)(A). 6 ALR5th 1.
Default jurisdiction of court under § 3(a)(4) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(c)(2)(D). 6 ALR5th 69.
Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(c)(2)(B). 5 ALR5th 550.
Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(c)(2)(c). 5 ALR5th 788.
Child custody: when does state that issued previous custody determination have continuing jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A. 83 ALR4th 742.
Applicability of Uniform Child Custody Jurisdiction Act (JCCJA) to temporary custody orders. 81 ALR4th 1101.
What types of proceedings or determinations are governed by the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA). 78 ALR4th 1028.
Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child. 49 ALR4th 7.
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38 ALR4th 756.
Right of parent to regain custody of child after temporary conditional relinquishment of custody. 35 ALR4th 61.
When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus--modern cases. 26 ALR4th 455.
Validity of state statute providing for termination of parental rights. 22 ALR4th 774.
Religion as factor in child custody and visitation cases. 22 ALR4th 971.
Standing of foster parents to seek termination of rights of foster child's natural parents. 21 ALR4th 535.
Propriety of awarding custody of child to parent residing or intending to reside in foreign country. 20 ALR4th 677.
Race as factor in custody award or proceeding. 10 ALR4th 796.
Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights. 10 ALR4th 827.
Right of putative father to custody of illegitimate child. 45 ALR3d 216.
Right of mother to custody of illegitimate child. 98 ALR2d 417.
Construction and application of International Child Abduction Remedies Act (42 U.S.C.A. §§ 11601 et seq.). 125 ALR Fed 217.
Finality for appeal of federal habeas corpus orders. 82 ALR Fed 937.
Issuance by federal court, pursuant to 28 U.S.C.A. § 2241(c)(5), of writ of habeas corpus and testificandum requiring presence of prisoner to testify at civil or criminal trial. 65 ALR Fed 321.
[c] Pertinent provisions of 28 U.S.C.A. §§ 2241, 2254
28 U.S.C.A. § 2241 provides in pertinent part:
§ 2241. Power to grant writ
(c) The writ of habeas corpus shall not extend to a prisoner unless--
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or....
28 U.S.C.A. § 2254 provides in pertinent part:
§ 2254. State custody; remedies in Federal courts
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
§ 2. Summary
Although federal habeas corpus relief under 28 U.S.C.A. §§ 2241, 2254 is most frequently sought in criminal proceedings, it is available in other contexts as well. However, where child custody is involved, the remedy of habeas corpus has been held to be available in the federal courts only on a limited basis. [FN1]
A petition for federal habeas corpus under §§ 2241, 2254 in a child custody case has been granted where the federal government has been involved in facilitating and maintaining alleged illegal custody ( § 5, infra) and where a parent sought to enforce a state court child custody order upon the children's removal to a federal reservation ( § 3, infra). However, where a state court order involving child custody was challenged ( § 3, infra), or where there were state court proceedings available or pending in which the issues of federal law relating to child custody could have been raised ( § 4, infra), federal habeas corpus relief under §§ 2241, 2254 has been denied.
§ 3. State court order involving child custody
Federal habeas corpus relief, under 28 U.S.C.A. §§ 2241, 2254, was held not available in the following cases in which a state court order or ruling involving child custody was challenged.
28 U.S.C.A. § 2254(a) does not confer federal court jurisdiction to challenge constitutionality of state statute under which state has obtained custody of children and has terminated involuntarily parental rights of their natural parent, since children who have been placed in foster homes pursuant to order of state court are not "in custody" of state in sense in which term has been used in determining availability of writ of habeas corpus. Lehman v Lycoming County Children's Services Agency (1982, US) 73 L Ed 2d 928, 102 S Ct 3231.
Affirming the District Court's order dismissing a petition for a writ of habeas corpus by a father seeking visiting rights with his children which had been suspended by the order of the state probate court supervising the divorce of the parents, the court in Donnelly v Donnelly (1975, CA1 Mass) 515 F2d 129, cert den 423 US 998, 46 L Ed 2d 373, 96 S Ct 429, held that habeas corpus relief was not available under the circumstances of the present case, which was at base a challenge to the state's authority to resolve the domestic dispute. Noting that the federal court is ill equipped to determine family obligations, lacking the power and resources of state family courts to consider the best interests of the entire family, the court stated that as a matter of policy it would not entertain the case if it were properly before the court, which it was not. Pointing out that 28 U.S.C.A. § 2254 provides relief against state "custody" pursuant to a judgment of a state only on the ground that one is in custody in violation of the Constitution or laws or treaties of the United States, the court concluded that federal habeas corpus relief was not intended to encompass the kind of parental custody involved in the present case since it is by its terms limited to "prisoners."
Affirming the District Court's dismissal of a mother's habeas corpus petition under 28 U.S.C.A. §§ 2241, 2254 in which she claimed that a state probate court order permitting the child's adoption without her consent contravened her Fourteenth Amendment rights to due process and equal protection because it was not premised on a formal finding that she was unfit for parental responsibilities, the court in Sylvander v New England Home for Little Wanderers (1978, CA1 Mass) 584 F2d 1103, 49 ALR Fed 563, held that child custody rulings by themselves are not sufficient to trigger a federal habeas remedy on behalf of a dissatisfied mother. After placing the child in the temporary charge of a state-licensed, privately run home, the mother, reversing her decision to put the child up for adoption, requested the child's return, but the home refused and sought authority from the state probate court to dispense with the mother's consent to the child's adoption. Observing that the child was under the supervision of the home and that his status was endorsed by a state judgment, the court stated that while a case can undoubtedly be made for extending the writ to child custody disputes, the Supreme Court has never acknowledged that habeas corpus is an appropriate remedy for litigating federal constitutional claims arising from state child custody disputes. The court explained that the custody involved is not the kind which has traditionally prompted federal courts to assert their jurisdiction in the face of prior state adjudication, since it could not be said that the child was being held against his will. The court saw little reason to believe that the assertion of federal supremacy by the vehicle of habeas corpus is either necessary or appropriate in cases such as the present one, emphasizing that the considerations in a child welfare case are different from those that are at stake in other cases where federal habeas corpus has been accepted. Suspecting that if habeas were allowed in child custody disputes, it would be difficult to limit, the court concluded that in the present case the question is who should bring the child up and that the mother may not avail herself of federal habeas corpus to litigate her right to do so. However, the court stated that it did not rule that children, and those acting for them, may not seek the writ in proper circumstances and suggested that if the child were incarcerated in a state home or if there were other issues making the present case a struggle for liberty by one imprisoned under the aegis of the state, it might well take a different view.
In habeas corpus action brought by mother, seeking release of son from "custody" of county department of social services, petition would be dismissed since child custody disputes are not regulated by federal law and are not within court's limited jurisdiction. Moore-Beidl v Beaudoin (1981, ND NY) 553 F Supp 404, affd without op (CA2 NY) 697 F2d 294.
Writ of habeas corpus may not be used to challenge custody of foster or adoptive parent over child; determination of child custody, without more, cannot provide predicate for use of federal habeas corpus. Yack v Grimes (1981, ED Pa) 531 F Supp 244.
Extraordinary writ of habeas corpus is inappropriate and unavailable to parents in child custody disputes. Castorr v Brundage (1982, CA6 Mich) 674 F2d 531, cert den 459 US 928, 74 L Ed 2d 189, 103 S Ct 240.
Petition for writ of habeas corpus is not available for federal constitutional challenge to state's statutory scheme for involuntarily terminating parent's rights in his children. Westerville v Kalamazoo County Dept. of Social Services (1982, WD Mich) 534 F Supp 1088, affd without op (CA6 Mich) 708 F2d 731.
District court lacked habeas corpus jurisdiction over father's allegations that, during his dispute with mother over custody of children, Missouri Division of Family Services assumed custody of his children in violation of Federal Constitution. 28 U.S.C.A. § 2241. U.S. ex rel. Mueller for and on Behalf of Mueller v. Missouri Div. of Family Services, 123 F.3d 1021 (8th Cir. 1997).
In proceedings initiated by child's natural parents by application for writ of habeas corpus, trial court had jurisdiction necessary to order child placed in custody of proper person. Blaine v Granger (1993, La App 3d Cir) 616 So 2d 860.
In the following case, federal habeas corpus relief was held to be available under 28 U.S.C.A. § 2241 where a state court order awarding custody of children who had been removed to a federal reservation, jurisdiction over which the state had ceded to the United States, was sought to be enforced.
The court in Young v Minton (1972, WD Ky) 344 F Supp 423, held that it had jurisdiction under 28 U.S.C.A. § 2241 of a petition for a writ of habeas corpus by a father seeking the return of two children who had been placed in his custody by an order of a North Carolina court and who had been removed to Fort Knox, Kentucky by their mother in violation of the order, observing that Fort Knox is a federal jurisdiction and that Kentucky has ceded all jurisdiction over it to the United States. Although the mother alleged that the children had not been properly cared for by the father, the court, noting that technically it was not sitting as a diversity court and was not bound to follow Kentucky law, nevertheless partially relied on state case law in declining to exercise full custody jurisdiction. The court explained that North Carolina was the appropriate forum to raise questions as to the merits of the custody features of the present case since the children had only minimal contacts with Fort Knox and the federal jurisdiction and since the court was not equipped with the necessary social service workers and personnel, as well as the day-by- day experience which the state courts have in formulating decisions as to custody matters. Concluding that the writ of habeas corpus should be made absolute and ordering the return of the children to their father, the court noted that if it thought that there would be any serious harm that would arise to the children by rendering their immediate custody to their father, it would not do so.
§ 4. Pending or available state court proceedings relating to child custody
Since there were state court proceedings available or pending in which the petitioners' claims could have been raised, the courts in the following child custody cases held that habeas relief was not available under 28 U.S.C.A. §§ 2241, 2254
In Wisconsin Potowatomies of Hannahville Indian Community v Wilsey (1974, MD Fla) 377 F Supp 1153, the court held that it should not hear an Indian community's petition for a writ of habeas corpus seeking the return of three Indian children, since there was a pending Florida adoption proceeding in which the federal claims of the Indian community could be made. Noting that under Florida law, pending a final judgment of adoption, the Division of Family Services of the Florida Department of Health and Rehabilitative Services is the official guardian of the children, the court stated that 28 U.S.C.A. § 2254, requiring as a precondition that the person be "in custody pursuant to the judgment of a State court," would appear not to apply to the present petition since no Florida court had yet ruled on the Indian community's federal claims. Explaining that although such a determination meant that § 2254(b), providing that a writ of habeas corpus may not be issued unless state remedies have been exhausted or state remedial processes are absent or ineffective to protect the petitioner's rights, likewise did not apply, the court stated that such fact did not necessarily mean that the court should proceed to hear the petition since it is a well-settled principle that a federal court should not hear a habeas corpus petition prior to trial, staying its hand until the state courts have had an opportunity to rule on the issue. Concluding that the courts of the state of Florida clearly were competent to determine the Indian community's federal law claims, the court denied its petition for a writ of habeas corpus for failure to exhaust available state remedies.
The court in Huynh Thi Anh v Levi (1978, CA6 Mich) 586 F2d 625, said that if the suit brought by the plaintiffs, the grandmother and uncle of four Vietnamese children who allegedly were improperly placed by a state agency for adoption after being brought into the United States in "Operation Babylift," were viewed as a habeas corpus petition under 28 U.S.C.A. § 2241(c), challenging the custody of the children by the state and its agents as contrary to the Constitution, it was was probably invalid. The children whose custody was sought had been placed with foster parents who subsequently instituted state adoption proceedings which were pending. The court, noting that under the case law developed in the criminal area, habeas corpus petitions may be filed in Federal District Court to challenge state custody only after state remedies have been exhausted and the federal claims presented to the state courts for consideration, stated that just as administration of the criminal justice system is recognized to be a matter of considerable local concern, so domestic relations is an area of predominantly local interest. Thus, continued the court, even if a legitimate constitutional claim is presented, the potential disruption of pending proceedings and the ensuing friction in the federal system provide good reasons for deferring to state proceedings and declining federal jurisdiction. Affirming the judgment of the District Court dismissing the complaint for failure to exhaust state judicial remedies, the court pointed out that the present case was not one where the application of a federal rule, whether of constitutional, international, or statutory origin, is likely to provide the best answer, and concluded that it must rely on a judge in a court of family law, with its more flexible standards and with the parties before him and their latest circumstances in mind, to balance the equities and seek compromises that best accommodate the interests of the parties.
In Le Thi Sang v Levi (1977, ED Cal) 426 F Supp 971, in which the plaintiff sought by means of a petition for a writ of habeas corpus the return of a minor child alleged to have been born to her and her husband, an American soldier, from the federal defendants, members of the Immigration and Naturalization Service, as well as those having actual physical custody of the child, the court, dismissing the petition on the motion of the federal defendants, observed that if the plaintiff and the defendants having physical control of the child were unable to resolve their dispute over the custody of the minor child, they should pursue the matter in the state court for the county of the present residence of the minor child. Finding that the minor child had been paroled into the United States by the federal defendants, that such parole constituted the only custody of the minor child by the federal defendants, that no party in the action desired to have the parole revoked in such a manner that the minor child would be returned to Vietnam, that the federal defendants did not require as a condition of the parole that the minor child remain in the custody of the other defendants, and that any custody of the minor child which was consistent with state law would be accpetable to the Immigration and Naturalization Service so long as the Service was kept apprised of the whereabouts of the minor child, the court held that there were no exceptional circumstances which would require the court to exercise jurisdiction in derogation of the normal rule that federal courts do not exercise jurisdiction in child custody contests, such actions being more properly reserved to the state courts for decision.
§ 5. Involvement of Federal Government in allegedly illegal custody
Habeas corpus relief under 28 U.S.C.A. § 2241 was held to be available in the following case where the Federal Government was involved in facilitating and maintaining the allegedly illegal custody of children.
Petition to Court of Appeals for writ of habeas corpus would not be appropriate for federal constitutional challenge to state's statutory scheme for involuntarily terminating parent's rights in her children; habeas corpus lies to challenge unlawful custody, but unlawful custody is not issue in parental rights termination case and it is not liberty interest of children that is sought to be protected in such case, but only right of particular parent to raise them. Lehman v Lycoming County Children's Services Agency (1981, CA3 Pa) 648 F2d 135.
In Nguyen Da Yen v Kissinger (1975, CA9 Cal) 528 F2d 1194, on remand (ND Cal) 70 FRD 656, app dismd (CA9 Cal) 602 F2d 925, a guardian ad litem for three Vietnamese children who allegedly were brought into the United States improperly during the Vietnamese babylift, such children having living parents in Vietnam, sought the reunion of the children with their parents by means of a class action on behalf of those of the 2,700 orphans involved in the babylift sharing the complaint. It was alleged that the federal defendants, the Immigation and Naturalization Service and others, violated the children's fundamental human rights and Fifth Amendment right to liberty and due process. The Court of Appeals held that the District Court had jurisdiction under 28 U.S.C.A. § 2241 to issue a preliminary order in the proceeding, stating that while most private detentions do not rise to the level of constitutional violations, the governmental involvement in facilitating and maintaining the allegedly illegal custody exercised respectively by foster parents and adoption agencies did present that possibility in the present case. The court observed that although the airlift, in which various agencies of the United States participated in concert with private American adoption agencies, was apparently intended to remove only those children who were already in some stage of the requisite procedure for admission to the United States and adoption by American families, some of the children were brought to the United States improperly, their accompanying documentation being insufficient on its face to establish the child's status, the validity of the private adoption agencies' custody of such child under Vietnamese child custody law, or the child's eligibility for admission into the United States. The "in custody" jurisdictional prerequisite to § 2241 was met, explained the court, since custodial restraints on a minor child, even if voluntarily submitted to by the child, have long been held a sufficient deprivation of the child's liberty to be tested by way of habeas corpus, and a child is presumptively detained if the custody is illegal. Furthermore, the court stated that detention need not be by governmental authorities in order to confer § 2241 jurisdiction because the federal habeas statute predicates the exercise of federal habeas jurisdiction not on the character of the custodian, but on that of the custody: "in violation of the Constitution or laws.... of the United States." Concluding that under the unique circumstances of the present case, the District Court had ample power to proceed in habeas as it did, the court cautioned that the District Court's habeas jurisdiction is limited and it may grant the writ only as to children presently detained within its territorial jurisdiction or to those who were within its jurisdiction when the application was filed but were subsequently removed.
But see Le Thi Sang v Levi (1977, ED Cal) 426 F Supp 971, supra § 4.
Whole subject of domestic relations of husband and wife, parent and child, belongs to laws of states and not to laws of United States. Thus, court would deny emergency petition under 28 U.S.C.A. § 2241(c)(3) for writ of habeas corpus releasing petitioner's children from state custody where petitioner's constitutional claims appeared to arise out of domestic relations dispute and action appeared to be abortive attempt to involve federal court in domestic relations matter best left to state. Martin v Chiles (1991, SD Fla) 763 F Supp 1133.
The following references may be of related or collateral interest to a user of this annotation.
Annotations
ALR Digest Habeas Corpus § 16.
L Ed Index Children and Minors; Custody; Divorce and Separation; Habeas Corpus.
Quick Index Custody and Support of Children.
Quick Index Divorce and Separation.
Quick Index Habeas Corpus Parent and Child.
Quick Index Visitation.
Federal Quick Index Children or Minors.
Federal Quick Index Custody of Children.
Federal Quick Index Divorce and Separation.
Federal Quick Index Exhaustion of Remedies.
Federal Quick Index Habeas Corpus.
[FNa]. October, 1999 Supplement Copyright (c) 1999 by West Group
[FN1]. For a discussion of habeas corpus proceedings involving infants restrained by a noncriminal court order, see 39 Am Jurisprudence 2d, Habeas Corpus §§ 91-93.