Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502 (1982)
Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502 (1982)
502
102 S.Ct. 3231
73 L.Ed.2d 928
Syllabus
Petitioner voluntarily placed her three sons in the legal custody of
respondent county agency, which in turn placed them in foster homes.
Thereafter, a Pennsylvania state court terminated petitioner's parental
rights with respect to her sons because of parental incapacity, and the
Pennsylvania Supreme Court affirmed. Petitioner then filed an action in
Federal District Court, seeking a writ of habeas corpus under 28 U.S.C.
2254(a), which requires a district court to entertain an application for such
a writ in behalf "of a person in custody" pursuant to a state-court judgment
in alleged violation of the Federal Constitution. She requested a
declaration of the invalidity of the Pennsylvania statute under which her
parental rights were terminated and an order releasing her sons to her
custody. The District Court dismissed the petition on the ground that
respondent's custody over petitioner's sons was not the type of custody to
which 2254(a) may be addressed. The Court of Appeals affirmed.
Held: Section 2254(a) does not confer jurisdiction on federal courts to
consider collateral challenges to state-court judgments involuntarily
terminating parental rights. Pp. 508-516.
(a) Although the scope of the federal writ of habeas corpus has been
extended beyond that which the most literal reading of the statute might
require, the writ has not been considered a generally available federal
remedy for every violation of federal rights. The writ's availability has
been limited to challenges to state-court judgments in situations where, as
a result of a state-court criminal conviction, a petitioner has suffered
substantial restraints not shared by the public generally, and the petitioner
has been found to be "in custody" within the meaning of 2254(a). Here,
petitioner's children are not in the "custody" of the State in the way in
which this term has been used in determining the availability of the writ of
habeas corpus. They are in the "custody" of their foster parents in
essentially the same way, and to the same extent, other children are in the
custody of their natural or adoptive parents. They suffer no restraint on
liberty not shared by the public generally, cf. Jones v. Cunningham, 371
U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285; Hensley v. Municipal Court, 411
U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294, nor do they suffer "collateral
consequences" sufficient to outweigh the need for finality, cf. Carafas v.
LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. To extend the
federal writ to challenges to state child-custody decisions based on alleged
constitutional defects collateral to the actual custody decision would be an
unprecedented expansion of the jurisdiction of the federal courts. Pp. 508512.
(b) Federalism and the exceptional need for finality in child-custody
disputes also argue strongly against the grant of the writ here. Extended
uncertainty for the children would be inevitable in many cases if federal
courts had jurisdiction to relitigate state custody decisions. Pp. 512-514.
(c) Habeas corpus has been used in child-custody cases in many States and
in England, and 28 U.S.C. 2255, authorizing federal-court collateral
review of federal decisions, could be construed to include the type of
custody to which petitioner's children are subject. But reliance on what
may be appropriate within the federal system or within a state system is of
little force where, as in this case, a state judgment is attacked collaterally
in a federal court. Petitioner would have the federal judicial system
entertain a writ that is not time-barred to challenge collaterally a final
judgment entered in a state judicial system. Pp. 514-515.
3rd Cir., 648 F.2d 135, affirmed.
Martin Guggenheim, Brooklyn, N. Y., for petitioner.
Charles F. Greevy, III, Williamsport, Pa., for respondent.
Justice POWELL delivered the opinion of the Court.
The question presented is whether the habeas corpus statute, 28 U.S.C. 2254,
confers jurisdiction on the federal courts to consider collateral challenges to
* The facts of this case are described in detail in In re William L., 477 Pa. 322,
383 A.2d 1228, cert. denied, sub nom. Lehman v. Lycoming County Children's
Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978), the Pennsylvania
Supreme Court decision terminating the parental rights of petitioner Marjorie
Lehman with respect to three sons born in 1963, 1965, and 1969.1 In 1971, Ms.
Lehman discovered that she was pregnant again. Because of housing and other
problems related to the care of her sons, Ms. Lehman voluntarily placed them in
the legal custody of the Lycoming County Children's Services Agency, and it
placed them in foster homes.
Although Ms. Lehman visited her sons monthly, she did not request their return
until 1974. At that point, the Lycoming County Children's Services Agency
initiated parental termination proceedings. In those proceedings, the Orphan's
Court Division of the Lycoming County Court of Common Pleas heard
testimony from Agency caseworkers, a psychologist, nutrition aides, petitioner,
and the three sons.2 The judge concluded: "[I]t is absolutely clear to the court
that, by reason of her very limited social and intellectual development
combined with her five-year separation from the children, the mother is
incapable of providing minimal care, control and supervision for the three
children. Her incapacity cannot and will not be remedied."3 In re Lehman, Nos.
2986, 2987 and 2988, p. 4 (Ct.Common Pleas, Lycoming County, Pa., June 3,
1976).4 The court therefore declared that petitioner's parental rights respecting
the three sons were terminated.
Petitioner sought this Court's review in a petition for certiorari rather than by
appeal.5 We denied the petition. Lehman v. Lycoming County Children's
Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). Petitioner then
filed the instant proceeding on January 16, 1979, in the United States District
Court for the Middle District of Pennsylvania, seeking a writ of habeas corpus
pursuant to 28 U.S.C. 2241 and 2254. Petitioner requested (i) a declaration
of the invalidity of the Pennsylvania statute under which her parental rights
were terminated; (ii) a declaration that petitioner was the legal parent of the
children; and (iii) an order releasing the children to her custody unless within
60 days an appropriate state court judicially determined that the best interest of
the children required that temporary custody remain with the State.
6
The District Court dismissed the petition without a hearing. Relying primarily
on Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (CA 1
1978), the court concluded that "the custody maintained by the Respondent
over the three Lehman children is not that type of custody to which the federal
habeas corpus remedy may be addressed." Lehman v. Lycoming County
Children's Services Agency, Civ. No. 79-65 (MD Pa.1979), reprinted in App. to
Pet. for Cert. 135a, 147a.
Sitting en banc, the Court of Appeals for the Third Circuit affirmed the District
Court's order of dismissal by a divided vote of six to four. 648 F.2d 135 (1981).
No majority opinion was written. A plurality of four, in an opinion written by
Judge Garth, concluded that "disputes of the nature addressed here and which
essentially involve no more than the question of who shall raise a child to
maturity, do not implicate the federal interest in personal liberty sufficiently to
warrant the extension of federal habeas corpus." Id., at 146. In support of this
conclusion, Judge Garth reasoned that "[i]t is not the liberty interest of the
children that is sought to be protected in such a case, but only the right of the
particular parent to raise them." Id., at 140 (footnote omitted).
The question presented to this Court can be stated more fully as whether federal
habeas corpus jurisdiction, under 2254, may be invoked to challenge the
constitutionality of a state statute under which a State has obtained custody of
children and has terminated involuntarily the parental rights of their natural
parent. As this is a question of importance not heretofore considered by this
Court, and one over which the Circuits are divided,7 we granted certiorari. 454
U.S. 813, 102 S.Ct. 89, 70 L.Ed.2d 82 (1981). We now affirm.
II
A.
10
11
"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."
12
13
Thus, although the scope of the writ of habeas corpus has been extended
beyond that which the most literal reading of the statute might require, the
Court has never considered it a generally available federal remedy for every
violation of federal rights. Instead, past decisions have limited the writ's
availability to challenges to state-court judgments in situations whereas a
result of a state-court criminal convictiona petitioner has suffered substantial
restraints not shared by the public generally. In addition, in each of these cases
the Court considered whether the habeas petitioner was "in custody" within the
meaning of 2254.11
14
Ms. Lehman argues that her sons are involuntarily in the custody of the State
for purposes of 2254 because they are in foster homes pursuant to an order
issued by a state court. Her sons, of course, are not prisoners. Nor do they
suffer any restrictions imposed by a state criminal justice system. These factors
alone distinguish this case from all other cases in which this Court has
sustained habeas challenges to state-court judgments. Moreover, although the
children have been placed in foster homes pursuant to an order of a
Pennsylvania court, they are not in the "custody" of the State in the sense in
which that term has been used by this Court in determining the availability of
the writ of habeas corpus. They are in the "custody" of their foster parents in
essentially the same way, and to the same extent, other children are in the
custody of their natural or adoptive parents. Their situation in this respect
differs little from the situation of other children in the public generally; they
suffer no unusual restraints not imposed on other children. They certainly suffer
no restraint on liberty as that term is used in Hensley and Jones, and they suffer
no "collateral consequences"like those in Carafassufficient to outweigh
the need for finality. The "custody" of foster or adoptive parents over a child is
not the type of custody that traditionally has been challenged through federal
habeas. 12 Ms. Lehman simply seeks to relitigate, through federal habeas, not
any liberty interest of her sons, but the interest in her own parental rights.13
15
Although a federal habeas corpus statute has existed ever since 1867, federal
habeas has never been available to challenge parental rights or child custody.14
Indeed, in two cases, the Court refused to allow the writ in such instances.
Matters v. Ryan, 249 U.S. 375, 39 S.Ct. 315, 63 L.Ed. 654 (1919); In re Burrus,
136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 1500 (1890). These decisions rest on the
absence of a federal question, but the opinions suggest that federal habeas
corpus is not available to challenge child custody. Moreover, federal courts
consistently have shown special solicitude for state interests "in the field of
family and family-property arrangements." United States v. Yazell, 382 U.S.
341, 352, 86 S.Ct. 500, 507, 16 L.Ed.2d 404 (1966). Under these
circumstances, extending the federal writ to challenges to state child-custody
decisionschallenges based on alleged constitutional defects collateral to the
actual custody decisionwould be an unprecedented expansion of the
17
"Federal habeas involves a substantial thrust by the federal system into the
sphere normally reserved to the states and hence a change in the federal-state
balance. This is so because the federal habeas remedy, as recently fashioned,
offers a federal forum regardless of what state proceedings have already taken
place and in effect allows a single federal district judge to overrule the
judgment of the highest state court, unfettered by the constraints of collateral
estoppel and res judicata." 584 F.2d, at 1111-1112.17
18
III
19
Petitioner argues that habeas corpus should be available to her because it has
been used as a procedure in child-custody cases in various States and in
England. She notes that, in Jones v. Cunningham, 371 U.S., at 238-240, 83
S.Ct., at 374-375, the Court indicated that in construing the habeas statute,
reference may be made to the common law and to practices in the States and in
England. It is true that habeas has been used in child-custody cases in England
and in many of the States. See id., at 239-240, and nn. 8, 12, and 13, 83 S.Ct., at
375-376, and nn. 8, 12, and 13, citing Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273,
9 L.Ed.2d 240 (1962); Boardman v. Boardman, 135 Conn. 124, 138, 62 A.2d
521, 528 (1948); Ex parte Swall, 36 Nev. 171, 174, 134 P. 96, 97 (1913); Ex
parte M'Clellan, 1 Dowl. 81 (K.B.1831); Earl of Westmeath v. Countess of
Westmeath, as set out in reporter's footnote in Lyons v. Blenkin, 1 Jac. 245, 264,
37 Eng.Rep. 842, 848 (Ch. 1821). As these cases illustrate, the term "custody"
in 28 U.S.C. 2255authorizing federal-court collateral review of federal
decisionscould be construed to include the type of custody the Lehman
children are subject to, since they are in foster homes pursuant to court orders.
But reliance on what may be appropriate within the federal system or within a
state system is of little force whereas in this casea state judgment is
attacked collaterally in a federal court. It is one thing to use a proceeding called
"habeas corpus" in resolving child-custody disputes within a single system
obligated to resolve such disputes. The question in such a case may be which
procedure is most appropriate. The system is free to set time limits on the
bringing of such actions as well as to impose other requirements to ensure
finality and a speedy resolution of disputes in cases involving child custody or
termination of parental rights. In this case, however, petitioner would have the
federal judicial system entertain a writ that is not time-barred to challenge
collaterally a final judgment entered in a state judicial system. In Sylvander v.
New England Home for Little Wanderers, the Court of Appeals for the First
Circuit gave a compelling answer to this argument:
20
IV
21
does a profound interference with state judicial systems and the finality of state
decisions, should be reserved for those instances in which the federal interest in
individual liberty is so strong that it outweighs federalism and finality
concerns.19 Congress has indicated no intention that the reach of 2254
encompass a claim like that of petitioner. We therefore hold that 2254 does
not confer federal-court jurisdiction. The decision below, affirming the denial
of a writ of habeas corpus, therefore is affirmed.
22
It is so ordered.
23
24
Although I can sympathize with what the Court seeks to accomplish in this case
today, I cannot reconcile myself to its holding that " 2254 does not confer
federal-court jurisdiction," ante, this page, to consider collateral challenges to
state-court judgments involuntarily terminating parental rights. In my view, the
literal statutory requisites for the exercise of 2254 federal habeas corpus
jurisdiction are satisfied herein particular, the requirement that petitioner's
children must be "in custody." Because I believe the Court could have achieved
much the same practical result in this area without decreeing a complete
withdrawal of federal jurisdiction, I respectfully dissent.
25
26
"While limiting its availability to those 'in custody,' the statute does not attempt
to mark the boundaries of 'custody' nor in any way other than by use of that
word attempt to limit the situations in which the writ can be used. To determine
whether habeas corpus could be used to test the legality of a given restraint on
liberty, this Court has generally looked to common-law usages and the history
of habeas corpus both in England and in this country." Id., at 238, 83 S.Ct., at
374.
27
29
The codification of the writ into federal law indicates no congressional intent to
contract its common-law scope. The sparse legislative history of the
predecessor statute to 28 U.S.C. 2254, the Habeas Corpus Act of February 5,
1867, ch. 28, 1, 14 Stat. 385, gave "no indication whatever that the bill
intended to change the general nature of the classical habeas jurisdiction."
Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,
76 Harv.L.Rev. 441, 476-477 (1963) (emphasis in original).3 Nor, since that
time, has this Court ever held that the congressional purpose originally
underlying the statute barred use of the federal writ to free children from
unlawful state custody.4 The Court's more recent precedents have firmly
established 2254's "in custody" requirement as its most flexible element,
stressing that the test of "custody" is not present physical restraint, but whether
"there are other restraints on a man's liberty, restraints not shared by the public
generally, which have been thought sufficient in the English-speaking world to
support the issuance of habeas corpus." Jones v. Cunningham, 371 U.S., at 240,
83 S.Ct., at 376.
30
Today the Court bows in the direction of this historical precedent only by
leaving open the possible availability of federal habeas if a child is actually
confined in a state institution, rather than in the custody of a foster parent
pursuant to a court order.5 Ante, at 511, n. 12. At the same time, however, the
Court presents three reasons why federal courts lack "jurisdiction" to issue writs
of federal habeas corpus to release children from the latter form of state
32
Second, the Court argues that children living with foster parents somehow are
not in the State's "custody" because "they suffer no unusual restraints not
imposed on other children." Ante, at 511. Yet because unadopted children
whose ties with their natural parents have been severed are wards of the State,
the State decides where they will live, reserves the right to move them to new
physical settings at will, and consents to their marriage, their enlistment in the
Armed Forces, as well as all major decisions regarding medical, psychiatric,
and surgical treatment. See Tr. of Oral Arg. 7 and 18, citing 23 Pa.Cons.Stat.
2521(c) (1980).
33
This Court has found the statutory concept of "custody" broad enough to confer
jurisdiction on federal courts to hear and determine habeas applications from
petitioners who have freely traveled across state borders while released on their
own recognizance, Hensley v. Municipal Court, supra, and who are on
unattached, inactive Army Reserve duty, Strait v. Laird, 406 U.S. 341, 92 S.Ct.
1693, 32 L.Ed.2d 141 (1972). Under these precedents, I have difficulty finding
that minor children, who as state wards are fully subject to state-court custody
orders, are not sufficiently and peculiarly restrained to be deemed "in custody"
for the purposes of the habeas corpus statute. Cf. Braden v. 30th Judicial
Circuit Court of Ky., 410 U.S. 484, 501, 93 S.Ct. 1123, 1133, 35 L.Ed.2d 443
(1973) (opinion concurring in result); Hensley v. Municipal Court, 411 U.S., at
Third, the Court asserts that "[f]ederalism concerns and the exceptional need
for finality in child-custody disputes argue strongly against the grant of Ms.
Lehman's petition." Ante, at 512. While I am fully sensitive to these concerns,
once again I cannot understand how they deprive federal courts of statutory
jurisdiction to entertain habeas petitions. Although the Court's decisions
involving collateral attack by state prisoners against state criminal convictions
have recognized similar federalism and finality concerns, they have never held
that those interests erect jurisdictional bars to relief. To the contrary, the Court
has carefully separated the question whether federal courts have the power to
issue a writ of habeas corpus from the question whether "in some
circumstances considerations of comity and concerns for the orderly
administration of criminal justice require a federal court to forgo the exercise of
its habeas corpus power." Francis v. Henderson, 425 U.S. 536, 539, 96 S.Ct.
1708, 1710, 48 L.Ed.2d 149 (1976). See also Stone v. Powell, 428 U.S. 465,
478, n. 11, and 495, n. 37, 96 S.Ct. 3037, 3044, n. 11, and 3052, n. 37, 49
L.Ed.2d 1067 (1976) ("Our decision does not mean that the federal court lacks
jurisdiction over such a claim . . ."); Fay v. Noia, 372 U.S. 391, 425-426, 83
S.Ct. 822, 842, 9 L.Ed.2d 827 (1963).
II
35
36
37
38
Similarly, the federal courts have interpreted the writ as being available only to
serve the best interest of the child. " 'When a party comes here, using the
privilege of acting on the behalf and as the next friend of infants, it is his
bounden duty to show that he really acts for the benefit of the infants, and not to
promote purposes of his own.' " King v. McLean Asylum of Massachusetts
General Hospital, 64 F. 331, 356 (CA1 1894), quoting Sale v. Sale, 1 Beav.
586, 587, 48 Eng.Rep. 1068, 1069 (1839). "[I]n such cases the court exercises a
discretion in the interest of the child to determine what care and custody are
best for it in view of its age and requirements." New York Foundling Hospital v.
Gatti, 203 U.S. 429, 439, 27 S.Ct. 53, 55, 51 L.Ed. 254 (1906).8
39
Against this historical background, then, I find most telling the Court's
39
Against this historical background, then, I find most telling the Court's
observation that "Ms. Lehman simply seeks to relitigate, through federal
habeas, not any liberty interest of her sons, but the interest in her own parental
rights." Ante, at 511. As the Court notes, the record reveals no evidence that
any of the sons wanted to return to their natural mother. Seeante, at 504, n. 2.
Moreover, in filing her federal habeas petition, petitioner expressly did not seek
to disturb the state trial court's factual findings. See Brief for Petitioner 6. Those
findings made "absolutely clear . . . that, by reason of her very limited social
and intellectual development combined with her five-year separation from the
children, [petitioner] is incapable of providing minimal care, control and
supervision for the three children. Her incapacity cannot and will not be
remedied." In re William L., 477 Pa. 322, 345, 383 A.2d 1228, 1239-1240, cert.
denied sub nom. Lehman v. Lycoming County Children's Services, 439 U.S.
880, 99 S.Ct. 216, 58 L.Ed. 192 (1978).
40
On such a record, I believe that the District Court could have found, as a
discretionary matter, that petitioner had not made a sufficient showing that she
acted in the interests of the children to warrant issuing her the writ as their "next
friend."9 Indeed, I believe that the common-law habeas corpus tradition would
have supported recognition of broad district court discretion to withhold the
writ in all but the most extraordinary cases, where the district court had strong
reason to believe both that the conditions of the child's confinement
unconstitutionally constrained that child's liberty, and that release of the child to
his natural parent very likely would serve the child's best interest.
41
Such a ruling would not have been inconsistent with the Court's decision today,
which expressly bases denial of habeas relief on a need to reserve the federal
writ "for those instances in which the federal interest in individual liberty is so
strong that it outweighs federalism and finality concerns." Ante, at 516. Indeed,
I cannot understand why the Court's explicit balancing approach yields a strict
jurisdictional bar. A discretionary limit would have allowed the writ to issue
only in those very rare cases that demanded its unique "capacity to . . . cut
through barriers of form and procedural mazes." Harris v. Nelson, 394 U.S.
286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969). Because the Court
overrides contrary history and precedent to find that habeas jurisdiction does
not lie, I dissent.
Petitioner has never been married. The fathers to these sons voluntarily have
relinquished their parental rights in state-court proceedings.
There was no evidence that any of the sons wanted to return to their mother. See
It has now been over a decade since the sons were removed from the custody of
their mother. Frank, the oldest, is now 18, and the case is moot with respect to
him since he is free to seek adoption by anyone, including his natural mother.
See Tr. of Oral Arg. 25-26. The other two sons, Bill and Mark, are now 12 and
16 respectively.
The judge relied on the Pennsylvania statute which provides, in relevant part:
"The rights of a parent in regard to a child may be terminated after a petition
filed on any of the following grounds:
*****
"(2) The repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being and the conditions
and causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent." 23 Pa.Cons.Stat. 2511(a) (1980).
This decision appeared to have been a strategic one, making possible, in the
event this Court did not grant plenary review, the filing of a habeas corpus
petition in federal district court without any problem of res judicata on the
federal issues as a result of this Court's summary affirmance or dismissal of the
appeal for want of a substantial federal question. At oral argument, however,
petitioner's lawyer also explained that he was confused as to whether he could
appeal both the facial attack on the statute and the challenge to the statute as
applied, and had therefore chosen the more conservative route of seeking a
petition for a writ of certiorari on both issues. See Tr.Oral Arg. 21-22.
Chief Judge Seitz filed a separate concurring opinion. He found the case "most
difficult," noting that "the literal statutory requirements for exercise of section
2254 federal habeas corpus jurisdiction can be said to be satisfied." 648 F.2d, at
155. But he nevertheless concurred in the result because habeas corpus has
never been used to challenge state child-custody decisions, and "such a major
departure from traditional uses of federal habeas corpus to challenge state-court
judgments" should "await a congressional directive on the matter." Id., at 156.
Judge Rosenn, joined by two other judges, dissented. He stressed that "[t]he
total extinction of a familial relationship between children and their biological
parents is the most drastic measure that a state can impose, short of criminal
sanctions." Id., at 163. Judge Gibbons also filed a dissenting opinion, arguing
that there was federal subject-matter jurisdiction and that habeas corpus should
be an available remedy because a decision terminating parental rights has ongoing effects. Id., at 177.
7
The federal courts have split on this issue. Only one court other than the Court
of Appeals for the Third Circuit has addressed the question in a full opinion; in
Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1978),
the Court of Appeals for the First Circuit held that habeas corpus could not be
used to avoid the finality of prior state-court child-custody proceedings, with a
rationale much like Judge Garth's in the instant case. Other federal courts have
assumedwithout full analysisthat habeas jurisdiction lies. See Davis v.
Page, 640 F.2d 599, 602 (CA5 1981) (en banc); Rowell v. Oesterle, 626 F.2d
437 (CA5 1980).
10
In Hensley, the State would have placed the petitioner behind bars, but was
prevented by a stay entered by the state trial court that subsequently was
extended by two Justices of this Court. 411 U.S., at 351, 93 S.Ct., at 1575.
Thus, although Hensley held the writ to be available in a case in which there
was no actual custody in a state penal institution at the time the writ was filed,
the extension was in the context of a person who had a strong claim to be
treated as a prisoner for jurisdictional purposes.
11
See Hensley, 411 U.S., at 345, 93 S.Ct., at 1571 ("This case requires us to
determine whether a person released on his own recognizance is 'in custody'
within the meaning of the federal habeas corpus statute. . ."); Carafas v.
LaVallee, 391 U.S., at 238, 88 S.Ct., at 1559 (similar); Jones v. Cunningham,
371 U.S., at 236, 83 S.Ct., at 373 (similar).
12
13
At the hearing before the Pennsylvania trial court, petitioner's lawyer actually
stated "[t]his is not a custody proceeding . . . ." Tr. 67.
14
15
Petitioner maintains that the approval of habeas jurisdiction in this case may be
limited. She suggests that it could be available only when the State takes the
child away from its natural parents, but not when the State simply determines
custody in a routine intrafamily dispute. It is not apparent that such distinctions
are possible, either in legal theory or as a practical matter. The circumstances of
custody vary widely, though in each disputed case the child is in the custody of
one personover the objections of someone elseby order of a state court.
The dissent suggests that comity and federalism concerns cannot inform a
court's construction of a statute in determining a question of jurisdiction over
certain kinds of cases. Post, at 522-523. But in Fair Assessment in Real Estate
Assn. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981),
precisely those concerns lead this Court to conclude that 42 U.S.C. 1983 does
not confer jurisdiction on the federal courts to hear suits for tax refunds when
state law provides an adequate remedy.
17
18
There is also the danger that "if litigation expenses mount, social workers and
charitable organizations . . . may well become less willing to seek placements
for children over their parents' objections, whether rational or irrational, even
though in their honest judgment the child's best interests demand it." Sylvander
v. New England Home for Little Wanderers, 584 F.2d, at 1112.
19
extent uninhibited by traditional rules of finality and federalism, its use has
been limited to cases of special urgency, leaving more conventional remedies
for cases in which the restraints on liberty are neither severe nor immediate."
411 U.S., at 351, 93 S.Ct., at 1575.
1
See, e.g., R. Hurd, A Treatise on the Right of Personal Liberty and on the Writ
of Habeas Corpus 454-521 (1858); W. Church, A Treatise of the Writ of
Habeas Corpus 555-557 (1886); L. Hochheimer, A Treatise on the Law
Relating to the Custody of Infants 156-162 (1887); H. Clark, The Law of
Domestic Relations in the United States 578-580 (1968); Bantz, Habeas Corpus
Custody of Infant, 15 Cent.L.J. 281, 281-282 (1882) (footnote omitted) (The
writ "is granted on the application of the parent, guardian or master to inquire
into the legality of the restraint of the child, ward, etc.; and its object is, not to
enforce a right of custody, but to remove unlawful restraint"); Hand, Habeas
Corpus Proceedings for the Release of Infants, 56 Cent.L.J. 385, 388 (1903)
("Whenever the parent seeks to recover a child from any third person, the
approved remedy is habeas campus."); Oaks, Habeas Corpus in the States
1776-1865, 32 U.Chi.L.Rev. 243, 273 (1965).
To the contrary, the legislators plainly intended to enact "a bill of the largest
liberty" that would not "restrain the writ of habeas corpus at all" and would
"enable the courts of the United States to enforce the freedom of the wife and
children of soldiers of the United States, and also to enforce the liberty of all
persons." Cong.Globe, 39th Cong., 1st Sess., 4151 (1866) (remarks of Rep.
Lawrence) (emphasis added).
In Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277 (1885), which
early delineated the forms of "custody" subject to the writ, the Court stated:
"There is no very satisfactory definition to be found in the adjudged cases of
Notwithstanding their conclusions that federal habeas "jurisdiction" does not lie
in child-custody cases, neither plurality opinion in the Court of Appeals was
willing to foreclose a federal court's power to issue the writ to secure a child's
release from state custody under extreme circumstances. See 648 F.2d 135, 144
(CA3 1981) (en banc) (Garth, J., announcing the judgment of the court) ("
'Were [the Lehman boys] incarcerated in a state home, or were there other
issues making this truly a struggle for liberty by one imprisoned under the aegis
of the state,' the writ might well be available") (citation omitted; emphasis in
original); id., at 152, n. 35 (Adams, J., concurring) ("Should the children be in
state custody against their will, it is even possible that habeas would be an
appropriate vehicle for the legal attack"). See also Sylvander v. New England
Home for Little Wanderers, 584 F.2d 1103, 1113 (CA1 1978) (leaving open the
possibility that federal habeas corpus might be available to free a child from
state custody).
I disagree with the Court's announcement that "no principled basis" would exist
for limiting the approval of federal habeas jurisdiction in child-custody
disputes. Ante, at 512, n. 15. When, as in this case, the State both initiates the
challenged judicial proceedings and remains the ongoing legal custodian of the
child, subject to state-court order, the state action is plainly sufficient to create
"custody in violation of the Constitution . . . of the United States" for 2254
purposes.
Intrafamily disputes, however, are ordinarily privately initiated and result in
private custody. If a child's natural parents disputed custody, and a state court
awarded custody to one of them, a legitimate question would arise whether that
person "may fairly be said to be a state actor." Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). See also
Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980)
("Of course, merely resorting to the courts and being on the winning side of a
lawsuit does not make a party a . . . joint actor with the judge").
7
See Jones v. Cunningham, 371 U.S., at 243, 83 S.Ct., at 377, (the "grand
purpose" of the writ is "the protection of individuals against erosion of their
right to be free from wrongful restraints upon their liberty"); Carafas v.
LaVallee, 391 U.S., at 238, 88 S.Ct., at 1559 (the "province" of the writ "is to
provide an effective and speedy instrument by which judicial inquiry may be
had into the legality of the detention of a person"); Hensley v. Municipal Court,
411 U.S., at 350, 93 S.Ct., at 1574 ("[W]e have consistently rejected
interpretations of the habeas corpus statute that would suffocate the writ in
stifling formalisms or hobble its effectiveness with the manacles of arcane and
scholastic procedural requirements. . . . That same theme has indelibly marked
our construction of the statute's custody requirement").
Presiding over United States v. Green, 26 F.Cas. 30 (No. 15,256) (CC RI 1824),
Justice Story concluded:
"[T]he right of the father to have the custody of his infant child . . . is not on
account of any absolute right of the father, but for the benefit of the infant, the
law presuming it to be for his interest to be under the nurture and care of his
natural protector, both for maintenance and education. When, therefore, the
court is asked to lend its aid to put the infant in the custody of the father, and to
withdraw him from other persons, it will look into all the circumstances, and
ascertain whether it will be for the real permanent interests of the infant; and if
the infant be of sufficient discretion it will also consult its personal wishes. . . .
It is an entire mistake to suppose the court is at all events bound to deliver over
the infant to his father, or that the latter has an absolute vested right in the
custody." Id., at 31-32.
Petitioner's colorable claim that her own constitutional rights were infringed
would not have entitled her automatically to serve as a "next friend." As Judge
Adams' concurring opinion in the Court of Appeals observed:
"Even if we assume that the statute under which the termination occurred, and
which survived attack in the state courts, is unconstitutional, it is highly
possible that Mrs. Lehman, in challenging the statute ostensibly on behalf of
the children, may actually be asserting an interest that derogates from the
child's interest. That is, the child's interest in a sound family environment that
the state statute was intended to protect may not be properly represented by the
parent's demand for family unity. . . . [W]hat is questionable here is her right to
resort to a habeas petition, which can be framed only on behalf of her children."
648 F.2d, at 154 (footnote omitted).
I disagree, however, with Judge Adams' conclusion that petitioner lacks
"standing to assert [a federal habeas] action on behalf of the three children." Id.,
at 155. As Judge Rosenn correctly responded in dissent, petitioner plainly has
standing in a constitutional sense to challenge the violation of her own rights.
The question here, however, is whether "Ms. Lehman may not be the bestor
even a properrelator in this action." Id., at 156, n. 2. Cf. id., at 154, n. 47
(Adams, J., concurring).