Colorado § 13-45-102 - Petition for relief - civil cases.

§ 13-45-102. Petition for relief - civil cases.

When any person not being committed or detained for any criminal or supposed criminal matter is confined or restrained of his liberty under any color or pretense whatever, he may proceed by appropriate action as prescribed by the Colorado rules of civil procedure in the nature of habeas corpus which petition shall be in writing, signed by the party or some person on his behalf, setting forth the facts concerning his imprisonment and wherein the illegality of such imprisonment consists, and in whose custody he is detained. The petition shall be verified by the oath or affirmation of the party applying or some other person on his behalf. If the confinement or restraint is by virtue of any judicial process or order, a copy thereof shall be annexed thereto or an affidavit made that the same has been demanded and refused. The same proceedings shall thereupon be had in all respects as are directed in section 13-45-101.

Source: R.S. 353, § 2. G.L. § 1324. G.S. § 1610. R.S. 08: § 2918. C.L. § 6487. CSA: C. 77, § 2. CRS 53: § 65-1-2. C.R.S. 1963: § 65-1-2.

ANNOTATION

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 36 Dicta 34 (1959). For article, "Recovering the Parentally Kidnapped Child", see 12 Colo. Law. 1798 (1983).

The purpose of habeas corpus proceedings is to determine whether a person is unlawfully restrained of his liberty. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).

A juvenile court has exclusive jurisdiction of adoption matters, but such jurisdiction has nothing to do with habeas corpus proceedings involving unlawful restraint. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).

Strict technicalities of habeas corpus that are applied in criminal case have no application in custodial questions. Fackerell v. District Court, 133 Colo. 370, 295 P.2d 682 (1956).

Habeas corpus is a proper remedy where a mother is not a party to an adoption. Fackerell v. District Court, 133 Colo. 370, 295 P.2d 682 (1956).

Mother may proceed by habeas corpus to regain custody of children from guardians. Where a full hearing was accorded guardians in a habeas corpus proceeding by a mother to regain custody of her child from guardians, as such, this did not cure the infirmity which resulted from the failure of the juvenile court to give guardians notice of mother's prior petition to dismiss guardianship proceedings. Woodson v. Ingram, 173 Colo. 65, 477 P.2d 455 (1970).

Stranger may not utilize writ to get children from parents. Habeas corpus is an available remedy to adjudicate custody of children under certain circumstances. But, a stranger lacks standing to maintain habeas corpus looking to an award of custody as against the parents of the child who are presumed to be entitled to the custody. Lopez v. Smith, 146 Colo. 180, 360 P.2d 967 (1961).

One who seeks custody through habeas corpus must show a prima facie right to custody. The habeas corpus petition alleges abandonment of the child by the parents. It seeks to establish a right based on past custody in fact although admittedly not in law. In the absence of a right to custody based on an adjudication decreeing adoption on one of the statutory grounds or on a finding of dependency under that statute, a third person may not maintain a habeas corpus action seeking an award of custody of a child as against the child's natural parents upon an allegation of prior abandonment by the parents. Lopez v. Smith, 146 Colo. 180, 360 P.2d 967 (1961).

A district court in habeas corpus proceedings has jurisdiction to determine whether a child is being unlawfully restrained by the grandparents. Such determination cannot in any manner affect the outcome of any adoption proceedings. An adjudication in the habeas corpus proceedings cannot be considered as an adjudication of abandonment as defined in the adoption statute or as used in the dependent and neglected children statute, for two reasons: (1) The question of abandonment is not an issue; (2) the district court has no jurisdiction over abandonment. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).

Habeas corpus may be utilized to determine custody of child originally domiciled in another state in an emergency. In the ordinary case, absent an emergency situation affecting the immediate needs and welfare of the child, an award of custody of a minor child domiciled in another state, made by a court having jurisdiction to do so, will be recognized under the long established custom of comity among the several states. However, under the doctrine of parens patriae, where an emergency exists concerning the immediate needs and welfare of a child within this state, our courts may, in such circumstances, enter custodial orders for the protection of such child, notwithstanding the child's domicile elsewhere and the existence of otherwise valid orders to the contrary theretofore entered in a sister state having jurisdiction of the parties. Such power may be exercised not only in ordinary custody proceedings, but also in habeas corpus proceedings as were pending in the present controversy. Wilson v. Wilson, 172 Colo. 566, 474 P.2d 789 (1970).

Colorado's habeas corpus statute applies only to persons, and not to nonhuman animals, no matter how cognitively, psychologically, or socially sophisticated they may be. The general assembly's use of the word "person" demonstrates its intent to limit the reach of this section to human beings. NRP v. Cheyenne Mountain Zoological Soc'y, 2025 CO 3, 562 P.3d 63.

Because an elephant is not a person, the elephants confined in a Colorado zoo do not have standing to bring a habeas corpus claim. NRP v. Cheyenne Mountain Zoological Soc'y, 2025 CO 3, 562 P.3d 63.

Applied in Nelson v. District Court, 186 Colo. 381, 527 P.2d 811 (1974).