The Use of Federal Habeas Corpus in Child Custody Disputes

Inability to enforce child custody decrees on a nationwide basis has created an unfortunate and well-publicized anomaly in the law. A parent disappointed with one state's award of custody may remove the child to another jurisdiction, gambling that the second state's courts will decline to enforce the original decree. Of the several remedies that have been suggested to relieve this situation, federal habeas corpus remains among the least explored. The use of federal habeas corpus in child custody disputes raises two questions central to every federal jurisdictional controversy: Do the federal courts have power to entertain the action? If the power exists, do federal legislative or judicial policies support a refusal to decide such suits? Although in 1890 the United States Supreme Court apparently answered the first question in the negative, the lower federal courts have debated the question continuously from 1824 until the present. Resolution of the second question requires a careful balancing of the states' interest in regulating disputes of a traditionally local nature, the federal courts' interest in restricting access to their limited resources, and the petitioner's interest in obtaining a final determination of child custody that will be respected in every American jurisdiction.