What Is A Writ Of Bodily Attachment & How Does It Work?
Updated September 09, 2021
Medically Reviewed By: Amanda Andrews
Anyone who has children of a former partner knows about the headache of child custody arrangements and of being dragged to court with subpoenas, of show clauses, and of other writs. Whether it’s because of an angry ex determined to extort money or a because of a court system that’s only trying to act in the best interests of the child, the battle of custody can be brutal. Most custody cases are filled with legalese that’s tough to understand. Working through a custody case isn’t the only time you’ll hear the term “writ of bodily attachment,” but it’s one of the most common situations where this sort of attachment term applies.
Types Of Court Orders
A writ of attachment is considered to be of a service of process, which is of legal-speak for a service performed by an entity for the court. The word “writ” is a command by the court, and it comes from the Anglo-Saxon word “gewrit.” It can apply to any terms, but in general, it’s of a formal declaration from a judicial jurisdiction. Depending on where you live, this could mean the court, the government, or even the local sheriff’s department. In most situations, the court is commanding a law enforcement agency to do some sort of action, though it’s usually a command to arrest a person.
Most people have heard of the terms “subpoena” and “warrant.” After the writ of bodily attachment, these are the most recognized types of writs. The judiciary body issues a writ of bodily attachment to the Marshall’s service or to another law enforcement body that has the authority to detain a person. When this happens, the warrant is not for an arrest; instead, it’s for civil disobedience to a court order. An example would be someone who has been called for contempt of court or for failure to appear. (This person is known as the contemnor). It’s also called a “civil arrest” because of there are no criminal charges against the person, but they’re still being detained. This is not considered a citizen’s arrest because of it being conducted by law enforcement.
What is a Writ of Bodily Attachment?
A writ of bodily attachment is specifically issued by the court to commit or detail a person of civil contempt. It’s usually issued by a judge from the clerk of the court, and then it’s served by the U.S. Marshall service. When serving, the Marshalls will hunt down the person named and then take them into custody, so they can be brought forcibly to court as soon as possible. Usually, this only happens when the person has held up court proceedings by making no effort to come to court on their own despite being notified.
However, a person can be given a writ of bodily attachment while present at a court hearing if they’re found in contempt of court and remanded. When this happens, there’s of course no need of finding them. They will simply submit proof of service to the court, which is proof of that person in contempt has been remanded.
How the Process of Writs Works
A person subject to a writ of bodily attachment must have been notified of the original motion and hearing before the court. Despite this notification, they have still not appeared or had willfully disobeyed previous court rulings on the subject. In the case of child support motions, the court will determine if the contemnor failed to pay based on a previous order. This can also apply if the person has only made partial payments. Even if the contemnor is present and can pay the child support, they will likely be remanded anyway because of the non-payment was by choice rather than necessity.
If the contemnor is not present, the court will issue a writ of bodily attachment and direct the person to be brought to court within a specified amount of time (usually 48 hours), so the court can determine whether the obedience was willful or not. They will not rule on the case itself, merely whether the contemnor failed to adhere to the previous ruling by choice or by necessity. This distinction will determine the court’s future actions on the case.
What to Do If You Have Been Issued a Writ?
If you’ve been issued a writ of attachment, do not ignore it, or you’ll eventually have Marshalls coming to find and detain you. In extreme cases where people have gone on the run, they may avoid being caught for years, but they’re always found eventually. If this happens, the consequences can be much, much worse. Should you have a writ of bodily attachment issued against you, the best choice is to turn yourself in at the local jail or police station.
Should Marshalls be dispatched to find you, they may detain you forcibly. This means you could get hurt or even killed in the process, and your residence could be damaged if, for example, they have to kick down the front door when you refuse to come out. In other words, there can be severe consequences to ignoring a writ.
A writ of attachment does not mean you’re going to jail, only that you will remain in jail until you’re seen by the court. It’s possible that you forgot your initial court appointment or maybe you’ve been struggling to make payments. Regardless of the situation, it’s important to tell the court your side of the story, and that can’t happen if you’re not there.
Alternatively, you can pay the clerk of the court for purging and the costs of the writ of attachment along with any outstanding balance. To do this, contact the clerk of court and ask if you have a purge amount that can be paid as soon as possible. Paying off what of it is you owe will keep you from going to jail. However, you must pay this in person at the court. Then carry the receipt with you as proof that the writ has been satisfied and terminated. It’s also a good idea to have a lawyer with you when you make this payment because officers who have been dispatched with your writ of bodily attachment will not be instantly notified of the change, so it may take a while before the court withdraws or vacates the writ.
Finding out you have a writ of bodily attachment on you can be very stressful. In addition, there might be potential trauma if you resist detainment and engage in a physical altercation. Consider how traumatic it might be for your family to have armed Marshalls breaking the door down to find you or to watch you being led away because you ignored it. In other words, it’s best to take care of it immediately, so you can avoid further trouble.
How Do I Remove a Writ of Bodily Attachment?
Even if the court has been satisfied, you may not be immediately released if you have been remanded. First of all, parties have to release you from the written order, and there may have been more than one judiciary body involved. This may mean that, even if the department’s requirements have been fulfilled, you won’t be released until all court bodies are notified, and the case is cleared. To remove the writ of bodily attachment, you’ll need to file a motion with the court for a hearing.
This motion brings the matter before the judge, so the court can be notified that the contemnor has not been released even though the requirements have been met. The court will then decide if the writ of attachment can be removed or if there are still outstanding elements from the other judiciary bodies.
Writs of Attachment and the Fourth Amendment
Until recently there was some legal gray area about whether or not a civil written order and a criminal warrant allowed officers the same rights to search a contemnor. After all, the Fourth Amendment to the U.S. Constitution states that a person has rights against unreasonable search and seizure, including warrants. However, in the case of the U.S. vs. Phillips from 2016, it was determined that a civil written order, like a writ of bodily attachment, is still subject to the same arrest procedures as those of a criminal arrest.
Phillips, the defendant, in this case, was arrested for possessing a firearm as a felon while he was being apprehended for a writ of attachment. He was subsequently jailed. His lawyer argued that, because of the writ of attachment was a civil procedure, the officers had no right to search the defendant as a criminal arrest would require. Therefore, the firearm was found through an illegal search. The court subsequently defined the written order as being no different than a warrant for arrest. In this case, the requirements for a written order were higher than those of a warrant in Florida (where the case took place), so Phillips lost the case.
Whom to Contact If You Have a Writ of Bodily Attachment?
If you’re dealing with court cases, it’s likely you already have an attorney. If you don’t, then you will need to get one, or you may ask for one to be appointed for you by the court. Aside from the court, this is the first person to contact when you have a writ of bodily attachment. However, many people don’t realize they’re under a writ of bodily attachment until the court sends Marshalls to find them, especially if they forgot a court date or didn’t know about it in the first place. In this case, you’ll want to call your lawyer as soon as possible.
In addition to talking with an attorney, you or your family may be in need of counseling or anti-anxiety treatments to cope with the situation.
Sites like BetterHelp have thousands of licensed counselors who are ready to help you. Divorced couples and families can attend online therapy from one of BetterHelp’s licensed counselors from a distance, making session attendance less painful and/or difficult. Another benefit to the BetterHelp online platform is the scheduling flexibility, allowing users to pick from a variety of times, and reschedule easily if necessary. If you are already dealing with the struggle of being served a writ of bodily attachment, having the ability to work with a therapist on your schedule is incredibly helpful. Read the reviews below to see what others have said about their recent experiences with BetterHelp counselors.
What is a writ of bodily attachment?
A writ of bodily attachment does not mean you’re going to jail, but you do have to show up at court. It’s not worth avoiding it when the alternatives to attachment could be much worse.
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