What Is A Writ Of Bodily Attachment & How Does It Work?
By Sarah Fader
Updated May 09, 2019
Reviewer Amanda Andrews
Anyone who has children with a partner they are no longer with knows about the headache of child custody and being dragged to court with subpoenas, show clauses, and other writs. Whether it's an angry ex determined to extort money or a court system that is only trying to get the best interests of the child, the battle can be brutal. Most custody cases are filled with legalese that is tough to understand. Custody cases aren't the only ones where you'll hear the term Writ of Bodily Attachment, but they are one of the most common.
What Is A Writ?
A writ of attachment is considered a service of process, legalese for a service performed by an entity for the court. The word "writ" is a command by the court. It can apply to many terms but is a formal declaration from a judicial jurisdiction. Depending on where you live this can be by the court, the government, or even the local sheriff's department. The term comes from an anglo-saxon word gewrit. In most instances the court is commanding a law enforcement agency to do some sort of action, usually to arrest, a person.
Most people have heard the term subpoena or warrant. These are the most recognized type of writs behind the writ of bodily attachment. The judiciary body issues the writ of bodily attachment to the Marshall's service or to another law enforcement body which has the authority to detain a person. The warrant is not an arrest but is 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. It is also called a "civil arrest" since there are no criminal charges against the person, but they are being detained. It is not the same as a citizen's arrest as law enforcement still conducts this. This person is known as the contemnor.
What Is A Writ Of Bodily Attachment
A writ of bodily attachment is specifically issued by the court to commit or detail a person for civil contempt. A judge usually issues it from the clerk of the court and then served by the U.S Marshall service. When serving, the Marshalls will hunt down the person named and then take them into custody to be brought forcibly to court as soon as possible. Usually, this only happens when the person has made no effort to come to court on their own despite being notified which holds up court proceedings.
However, a person can be given a writ of bodily attachment while present at a court hearing if they are found in contempt of court and remanded, so there is no need to find them. They will then submit a proof of service (proof that the person in contempt has been remanded) to the court.
How The Process Of Writs Works
A person subject to a writ of bodily attachment must have been notified of the motion and hearing before the court previously yet still not appeared or has 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 will also apply if the person only made partial payments. If the person is present and could pay the child support, they will likely be remanded because the non-payment was by choice rather than necessity. If the contemnor is not present then, the court will issue a writ of bodily attachment and direct that the person is brought to court within a specified amount of time (usually 48 hours) to determine whether the obedience was willful or not. This will not rule on the case itself, merely whether the previous ruling and failure of the contemnor to stick to it was by choice or necessity to determine the future actions of the court on the case.
What To Do If You Have Issued A Writ?
Do not ignore it. Even if you do eventually, you will have Marshalls coming to your door to find you and detain you. In extreme cases where people have gone on the run, they may not have been caught for years but eventually, they will, and the consequences can be much, much worse. If 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.
The reason for this is that should Marshalls be dispatched to find you they may do so forcibly. This means you could get hurt or even killed in the process, and you may have damages to your house like a battered down front door if you refuse to come out. They can even mace or shoot your dogs if they attack the officers when they are trying to detain you. A writ does not mean you're going to jail, only that you will until seen by the court, it just means you have to show up at court so it's not worth fighting over it when the alternatives could be worse. Maybe you just forgot court was that day, maybe you have been struggling to make payments, but 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 with whatever your outstanding balance is. Contact the clerk of court and ask if you have a purge amount that can be paid asap. This will pay off what you owe under the court order and keep you from going to jail. 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 a good idea to have a lawyer with you when you do this as officers who have been dispatched with your writ of attachment will not be instantly notified of the change, and indeed 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, not to mention the potential trauma if you resist detainment and deal with a physical altercation. Consider how traumatic it might be for your family to have armed Marshalls breaking the door down to find you or watching you led away because you resisted. Asides from talking with an attorney you or your family may need counseling from the event or anti-anxiety treatments. These will need a therapist or psychologist to do so. Sites like BetterHelp have search indexes of local therapists who can help.
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. There may have been more than one judiciary body involved if you've had one issued and all parties have to release you from the writ. This may mean that while you were remanded in the court jail because of the writ even if the department's requirements have been fulfilled, you won't be released until all court bodies are notified and the case cleared. To remove the writ of bodily attachment, you'll need to file a motion with the court for a hearing.
The motion brings the matter up before the judge again where the court can be notified that the contemnor has not been released even if the requirements have been met. The court will then decide if the writ can be removed or if there are still outstanding elements from the other judiciary bodies which are preventing it.
Writs Of Attachment And The Fourth Amendment
Until recently there was some legal gray about whether or not a civil writ and a criminal warrant allowed officers the same rights to search a contemnor. The fourth amendment to the U.S Constitution states that a person has rights against unreasonable search and seizure including warrants. In 2016, in the case of the U.S vs. Phillips, it was determined that a civil writ, like a writ of bodily attachment, is still subject to the same arrest procedures as those of a criminal arrest such as a bodily search.
The defendant, Phillips, had been arrested for possession of a firearm as a felon when being apprehended for a writ of attachment and was subsequently jailed. His lawyer argued that since the writ was a civil procedure that the officers had no right to search the defendant as a criminal arrest would require, and therefore the firearm was found through an illegal search. The court subsequently defined the writ as being no different than a warrant for arrest. In this case, the requirements for a writ were higher than those of a warrant in Florida where the case took place, and Phillips lost the case.
Who To Contact If You Have A Writ Of Bodily Attachment?
If you're dealing with court cases, it's most likely you already have an attorney. If you do not, then you will likely need to get one or may ask for one to be appointed for you by the court. This is the first person to contact asides from the court. Many people don't realize they are under a writ of bodily attachment until the court sends Marshalls to find them, especially if they forgot the court date or did not know about it.