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Writ of haebus corpus and child custody

Lindenhurst, NY |

I am going to do a writ of haebus corpus to try to get custody of my child back. The state has custody (CPS in other words). I need to know two things: 1. The procedure, I prepare the paper. And then what? I give it to Family Court at the clerks office and they stamp it and send it to the appellate division? 2. Who decides my writ? The family court judge in my case or the appellate division?

Attorney Answers 5


  1. I don't think a writ of habeus corpus is what you need. Probably just a custody petition in the appropriate family court. I don't know why or how your child was taken away, but you would be well advised to get an attorney if you want to get the child back.


  2. Consult with a local family lawyer immediately to see if this Petition is what you need to get your child back.


  3. As noted by my colleagues, not sure if this is what you need to file in your case without knowing the specifics. You may just need a petition for custody in family court, but we are unable to advise you properly here without knowing more. I would suggest you find a good family lawyer who can advise you of the proper procedure after you have told him or her the facts of your case. Best of luck.

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  4. Writ will bring the child to court , but custody is probably what you are seeking. Speak to a fsmily law attorney before acting.

    If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.


  5. In my 20+ years of practicing family law, I've never heard of someone successfully bringing a Writ of Habeas Corpus against CPS. It isn't clear from your question if you have been charged with child neglect or abuse. If you have, your remedy is to request a 1028 hearing (Family Court Act Sec. 1028) for the immediate return of your child. The standard at such a hearing is that the child should be returned because s/he would not be in "imminent risk" if returned to the parent while the case proceeds. Winning such a hearing does not mean that the case ends but the child would be returned to the parent's care. If you are not a respondent on a neglect case then, as the a non-respondent parent, you have an absolute right to have the child released to your care.

    If you do not have one, I strongly suggest that you immediately hire an attorney that is experienced in handling Article 10 cases. Your rights, as well as your child's rights, are at stake.

    This answer does not establish an attorney-client relationship. For an in-depth consultation, please contact my office.

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