Habeas Corpus in an Arizona Child Custody Case | Hildebrand Law, PC

Posted on : December 15, 2016, By: Chris Hildebrand

The term “habeas corpus” is generally used in criminal proceedings to test the legality of a prisoner’s detention. What does it mean in custody cases? Are criminal or custody procedures followed? In Smart v. Cantor, 574 P.2d 27 (1977) the Arizona Supreme Court addressed habeas corpus issues in custody cases.

Facts and Procedure

Mrs. Smart and Mr. Smart married and had a child. They divorced in 1975 in Utah and the court awarded custody to Mrs. Smart. Two years later, Mrs. Smart signed a stipulation to modify the custody arrangement, giving Mr. Smart custody during the school year. The Utah court entered an order modifying the divorce decree on September 12, 1977.

After signing the stipulation, but before the court order, Mrs. Smart moved to Arizona with the child. Husband went to Arizona and filed the Utah order and a petition for writ of habeas corpus. The court issued an order to show cause just a day before the hearing. Mrs. Smart did not have time to file papers. At the hearing, the superior court ordered that the child is returned to Mr. Smart. Wife filed this special action and the Arizona Supreme Court stayed the superior court order.

U.S. News and World Report Votes Hildebrand Law, PC Best Law Firms for 2020 2021 2022 2023

Habeas Corpus Procedures in Child Custody Cases

The Court acknowledged that Arizona law is not clear when it comes to habeas corpus procedures in a child custody case. Habeas corpus is a procedural device to bring child custody matters before a court. It is related to criminal habeas corpus, but the intention and procedures differ.

Criminal habeas corpus writs are procedures used to test the legality and correctness of a prisoner’s detention. The legal rights of the prisoner are central. When a person petitions for a writ of habeas corpus in a custody matter, the technical legal rights of a parent are not central.

The paramount issues in a custody habeas corpus case are the best interests and the welfare of the child. Because of that difference, the Arizona Supreme Court said that child custody procedures apply in this type of action.

The procedures set forth in the criminal code do not control.

Scottsdale Arizona Divorce, Family Law, and Estate Planning

Due Process Violations

The Court discussed the due process issues in this case. For one, Mrs. Smart did not get notice of the 9:15 a.m. hearing on the evening before. Because of this, she did not have time to prepare a responsive pleading. In addition, the court refused to hear the issues she tried to raise at oral argument. These included the validity of the Utah custody judgment.

A valid child custody decree of a sister state is entitled to full faith and credit in Arizona. However, the judgment is no more effective in Arizona than it was in the state where it was rendered. If the Utah court did not have jurisdiction, the faulty judgment is not saved by the Full Faith and Credit Clause.

Arizona has at least as much authority to disregard the judgment as does the state where it was rendered. If Utah lacked jurisdiction to award husband custody of the child, then he cannot get the order enforced in Arizona. Therefore the court should have heard Mrs. Smart’s arguments and addressed the issues raised.

Mrs. Smart can argue the change of circumstance, extrinsic fraud and the fact that she did not receive notice of Utah’s modification proceedings. A parent is entitled to due process whenever her custodial rights to a child are to be determined.

Disposition

The Arizona Supreme Court ruled that the wife did not get sufficient notice to exercise her rights in the Arizona proceeding. It vacated the order of the superior court and remanded for a new hearing.

If you have questions about habeas corpus in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child custody or family law case around today.

Click Here to Schedule Your Consultation!

Our Reviews

SFP

1699506594

Kip Micuda represented me in a very contentious custody matter. Mr Micuda... possesses one of the sharpest legal minds and provides truly compassionate representation for his clients. My children and I are in a much better place due to Mr Micuda's efforts.read more

Sterling W.

1670443535

The entire team at Hildebrand Law was excellent in every aspect of my custody... case. Kent Millward and Karla Spaulding-Huft were fantastic. Everyone was extremely helpful and professional throughout the entire process. Their preparation and dedication to my case helped ensure a winning ruling. I have and will continue to refer anyone going through a challenging situation to speak with Chris and his team.read more

Harvey T.

1666808546

Michael Clancy worked with us on 2 cases. He was thorough and always listened... to our concerns and needs. Very professional while still being personable. He and his staff made us feel as though our cases were important and gave us realistic expectations of the outcomes.read more

akillas28

1665549809

When it comes to civil/family law matters that needs to be resolved in the... court , I highly recommend Hildebrand Law Firm. In my case an international abduction of a minor was involved - a very sensitive and risky topic. They handle everything very professionally, and we won the case due to their experience and expertise in State Law / Federal Law & international Law (Hague Convention). They are great, in every aspect and I highly suggest Hilderbrand Law Firm for a matter as such.K.I.read more

Stacia E.

1664468443

Michael represented me. I was very pleased. He was very attentive, supportive... and understanding to my unique circumstance. He is extremely knowledgeable and detailed and I was very impressed with his ability to retain even the smallest details.read more

Ericp0503

1655170377

My attorney (Kent) reluctantly decided to take my case, as I had already... started down the process of "collaborative divorce", prior to meeting with Hildebrand Law. I felt throughout my entire collaborative process, that I was being taken advantage of, and my rights were being infringed upon.Turns out, I was right! Thankfully, the experts at Hildebrand, specifically Kent Milward and his para legal, Karla, took the time to hear me out and decided to takeme on as a client!I will be forever indebted to The experts at Hildebrand law for protecting my children's and my rights.I cannot say enough thank yous!read more

David F.

1653363911

I've worked with both Chris himself as well as other lawyers at his firm such... as Chris Noel. I found them trustworthy, compassionate, great advisors, and very serious and strong advocates for my rights. I would recommend them to any friend without reservation. I hope you never need their services but they are good people to have in your corner.read more

Jonathan Molina (.

1650043587

A firm of unquestionable ethics. Commands respect within the literati of the... dismal sciences, we call them lawyers.Have your wallets ready, as you get what you pay for - and you are getting the best at Hildebrand Law.One must temper their ambitions in the waters of their ethics - demonstrably, Michael Clancy afforded me treatment as that of his own kin. He ought make partner, if it is not already readily apparent.read more

David B.

1622132002

Very kind and informative with zero pressure.

Margaret B.

1617936779

Their level of knowledge and expertise inspired confidence from the initial... consultation, where they clearly outlined the possibilities along with the potential costs of each.Both Carlos Noel, our attorney and his para-legal, Lindsey Duran, were available to answer questions and guide us through the process. Their attention and care greatly increased our comfort level, as everything had to be done virtually, due to COVID-19.Communications with the other side were strategic and effective, undoubtedly saving both time and money.We were very pleased with the final outcome and would not hesitate to use the firm again or recommend them to others. They know their stuff and get it done!Z. Beck & M. Beck-Harbortread more

Annie G.

1600447839

Chris Hildebrand was an excellent consult regarding an estate matter for my... Montana client who owns property in Arizona. Chris was knowledgeable and responsive to my inquiry. My office has an wonderful resource in Arizona!read more

cindie H.

1597990455

Kip Micuda is an amazing attorney who always made me feel protected. I highly... recommend Kip. He is extremely knowledgeable and professional. Could not be happier.read more

slaitnessE#312 E.

1586481876

Michael Clancey is experienced and just the right of everything. I found... Michael on the fly. Needing a lawyer in less than a week.Michael was organized and intuitive, efficient and worth every penny. Highly recommend!!!❗❗❗❗read more

Joel M.

1583866307

Carlos is patient, extremely personable and knows how to explain complex legal... issues to a layperson.read more

Jim T.

1578337562

Was great source of information in regard to Arizona family law. Promptly... responded to messages with accurate information. Highly recommend.read more

Michael G.

1574450723

Chris Hildebrand is an experienced and knowledgeable attorney who does well... both in and out of the courtroom. My experience with Chris is that he's a strong advocate for his clients and a knowledgeable attorney. I never hesitate to recommend him for any legal matter.read more

Kent H.

1570726062

Great to Work with!

Michelle H.

1564001661

I hired Michael Clancy just when I was about to give up on an existing... post-decree case which I started with a different attorney over a year ago. Michael is knowledgeable, upfront and personable; he gave me the confidence to continue and settle my post decree case. I knew he was secure, capable and could handle my case and represent me well. He did everything he could to ensure a great outcome for the modification of my current court orders to help my son have a more stable mental, social and physical well-being, which to me is priceless! I would highly recommend him to anyone who wants to be in the best possible hands during one of the most stressful events that could happen to any parent that wants the best for their child/children. Thank you Michael for fighting for my son's safety!! Also, his paralegal, Alison, was awesome and very helpful!read more

Shari A.

1555103708

HIGHLY RECOMMEND! Cannot say enough wonderful things about my experience with... Hildebrand Law. I have been working with Chris and the firm for about 6 years now, and I always feel like my concerns, issues and questions are addressed in a thorough and timely manner. They definitely have my best interests at heart. I recommend Chris whenever anyone asks me who I used as my divorce attorney. Great firm and great results!read more

Brandi S.

1554469866

Compassionate and patient and helped so much. The best attorney I've ever... dealt with. Nothing but good things to say about Chris. So grateful.read more

Rick C.

1548199393

Chris Hildebrand is one of the sharpest and effective attorneys that I have... encountered in my 27 years of business. Doing business on the East Coast, as well as Southern California and Arizona has afforded me countless opportunities to work with legal minds from various parts of the country. Needless to say, Chris is by far one of the most honest, intelligent and street smart attorneys I have encountered. I have referred a number of people to Chris and everyone has been fully satisfied. 100% recommend him!read more

Niko R.

1547780277

This is not only a great law firm that cares about their clients but also the... results they get for their clients. Great people and attorneys, I highly recommend this firm!read more

Richard S.

1539906675

I first should comment on how I found this law firm. I am an attorney myself,... though never licensed in Arizona. I moved to Arizona to rejoin my wife and son, who had moved out to Arizona ahead of me. Things soured. I don't know why, but they did.There was a particular issue for me with inherited property. I did some basic Internet research, and Hildebrand's name kept coming up as the author of scholarly articles on the issue concerning me. I asked that Hildebrand be assigned to my case. This was not possible, but his second in command, Mr. Micuda, took over, and Mr. Micuda knows his business.The initial scheduled 1 hour meeting ran for an hour and 45 minutes, and facts, law, and strategy were fully discussed. Throughout the case, everything was explained to me clearly, both verbally and in writing.Proceedings went forward without delay. Because I had selected one of the most prominent Domestic Relations firms in town, there was no serious opposition. This ended up being an essentially co-operative divorce between the two sides, the reasoning being to conserve assets rather than enrich lawyers.Through a series of 3 or 4 payments, I put up about $10,000 for fees and costs. I found the Hildebrand law firm's billings to be fair. They billed for work done; no padding. I am getting about 25% of what I paid in back, as a refund.The matter was done in about 6 months: divorce, agreed property settlement, agreed support provisions as to my son. My matters were handled by an attorney and paralegal team, and handled efficiently.Mine was not a "big" case in terms of its economic value to anyone, but I did not feel like a second or third class citizen; I was treated with the same respect, even though the dispute was over a condo, as opposed to, say, a Scottsdale mansion with land.This may sound strange, but i was actually somewhat sorry that the matter had to come to a conclusion. I felt that I had been treated like a friend, not just an anonymous customer. Being a practical man, I realize it's down to sending a Christmas or other seasonal card.As I said at the outset, I found this place by dint of my own research. I feel I am a lucky man that I did.read more

Habeas Corpus in an Arizona Child Custody Case | Hildebrand Law, PC

Table of Contents

Facts and Procedure

Habeas Corpus Procedures in Child Custody Cases

Due Process Violations

Disposition

More Articles About Child Custody in Arizona