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April 26, 1983


Appeal from a judgment of the Circuit Court for Milwaukee County, W.L. Jackman, Reserve Judge. On certification from Court of Appeals.

Motion for Reconsideration Denied, without Costs, June 1, 1983.

Steinmetz, J.

The opinion of the court was delivered by: Steinmetz

The issue in this case is whether a circuit court Judge may refuse on the basis of comity to sign a writ of in a child custody dispute.

On April 24, 1980, the Honorable William D. Gardner ordered J.V., a two and one-half year old minor at the time, placed into foster care custody pursuant to sec. 48.19(1) (c), Stats. *fn1 The emergency order was based upon allegations that J.V. was a victim of child abuse. *fn2 It appears from the record and oral argument that J.V. had not actually been residing with his mother since October 12, 1979. The record does not indicate why the emergency order was sought six months later. Judge Gardner scheduled a hearing before a court commissioner to further consider the custody change, if it was a change, for April 28 at the children's court center.

On April 25, 1980, J.V.'s mother petitioned the defendant, the Honorable Michael J. Barron, to issue a writ of . Judge Barron refused to sign the accompanying order granting the writ of for reasons of comity.

Subsequently, this action for $1,000 in statutory damages against Judge Barron was instituted pursuant to sec. 292.09, Stats. (1977), *fn3 for refusing to sign the writ of . J.V. alleged that comity is an improper ground for refusing to grant a writ. The matter was submitted to the Honorable W.L. Jackman and on cross motions for summary judgment, he ruled in favor of Judge Barron. We accepted certification of this case from the court of appeals. *fn4

Petitioning for a writ of is a right granted by the United States and Wisconsin Constitutions *fn5 and Wisconsin Statutes, ch. 782. The roots of the writ can be traced deep into English common law and "indisputably holds an honored position in our jurisprudence." Engle v. Isaac, 456 U.S. 107, 126 (1982). Its special function is to protect and vindicate a person's right of personal liberty by freeing him from illegal restraint. The writ is frequently used in prisoner cases, but it is also used in child custody cases, treating the removal of a child from lawful custody as an illegal restraint.

Although the petitioner has a right to the writ, Judges are not bound to issue the writ as a matter of course, but only upon cause shown. Thus, the petitioner presents the petition for the writ to a Judge who examines it and grants or refuses the writ.

In many child custody disputes, there is no underlying court order or judgment regarding the custody of the child. In those types of cases, the petitioner alleges a legal right to the custody of the child usually because of natural parenthood. If the writ is granted, the habeas court holds a hearing to decide whether there is in fact an illegal restraint. If an unlawful restraint is found then the court makes a custody determination focusing on the welfare of the child. See State ex rel. Tuttle v. Hanson, 274 Wis. 423, 80 N.W.2d 387 (1957). See generally Oaks, in the States -- 1776-1865, 32 U. Chi. L. Rev. 243, 270-74 (1965).

When there is an underlying court order, as in this case, the writ does not take the place of a writ of error to determine the merits of an order in issue. Since the court issuing the underlying order has presumably already considered the best interests of the child in its custody determination, relitigation of the child's interest is not appropriate on . Instead, when relief is sought to release a child confined under a court order, the habeas court determines only whether the order is void because the court issuing the order lacked jurisdiction to do so, the order was made in violation of the constitution, or there was a lack of legal authority for the order. Wolke v. Fleming, 24 Wis. 2d 606, 613-14, 129 N.W.2d 841 (1964), cert. denied, 380 U.S. 912 (1965).

In this case, J.V.'s mother presented a petition for a writ of to Judge Barron, averring that such confinement of J.V. was "contrary to law." Had Judge Barron granted the writ, J.V. would not have been entitled to immediate release from custody ordered by Judge Gardner. By granting the writ, Judge Barron would have directed the person who had custody of J.V. to produce J.V. and to appear at a hearing at which the legality of Judge Gardner's order would have been litigated. If the order was illegal, then Judge Barron would have remanded custody of J.V. back to his custodian before Judge Gardner's order or determine who should have custody of J.V. until a final hearing before Judge Gardner. Thus, J.V. could not have been released from the ordered custody until hearings were held after the writ was granted. State ex rel. Terry v. Schubert, 74 Wis. 2d 487, 491-92, 247 N.W.2d 109 (1976), vacated on other grounds, 434 U.S. 808 (1977); State ex rel. Durner v. Huegin, 110 Wis. 189, 236-37, 85 N.W. 1046 (1901); State ex rel. Dunn v. Noyes, 87 Wis. 340, 343, 58 N.W. 386 (1894); Petition of Crandall for a , 34 Wis. 177, 179 (1874).

The record in this case, though sparse, indicates that Judge Barron did not refer to the petition presented to him nor consider whether the court ordering the restraint of J.V. had jurisdiction and was acting constitutionally. When Judge Barron refused to sign the writ he explained:

"The reason for not signing this is that the Court has serious doubts as to whether one Circuit Court ought to be reviewing the order of a court of equal ...

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