In a recent tightly orchestrated, if not closely watched, courtroom drama, New York has rejected the claim that chimpanzees possess the fundamental right to liberty. The suit brought by the Nonhuman Rights Project against Patrick Lavery, the owner of Santa’s Hitching Post, a farm and tourist attraction in Gloversville, New York, tested the rights of chimpanzees by using an ancient legal device known as a Writ of Habeas Corpus to seek the release of Tommy, a twenty-six year old chimpanzee, from solitary confinement. A Writ of Habeas Corpus, once signed by a judge, directs that someone produce another person in court, to determine if that person is being illegally detained. The New York Supreme Court Appellate Division for the Third Department refused to reverse a lower court’s rejection of the Writ, declaring that only human beings can seek protection of basic rights such as liberty. It refused to consider the autonomy and self-awareness of chimpanzees, and instead focused on the underlying social contract that is the basis for the legal protection of rights, concluding that chimps are incapable of participating in that contract. In what sounded more like philosophy than law, the Court reasoned that “[s]ociety extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities.” Not being responsible for their actions, chimps cannot be a party to that contract, and so are not entitled to all of the rights conferred by society. The Court was quick to qualify this equation, however, pointing out that chimps, like other animals, are still afforded protections against cruelty and unjustified killing under the state’s Agriculture and Markets Law and Environmental Conservation Law.
Sensible enough, perhaps, until you consider the protections afforded a child unlawfully detained. New York State has long provided that a writ of habeas corpus may be used to secure the return of a child to the lawful custodial parent (or grandparent) (Domestic Relations Law sec.70 and Family Court Act sec. 651). Translating from the latin, a writ of habeas corpus literally demands the return of the “body” of the person detained, and makes no distinction for the ability of any particular child to participate in a social contract and “submit to social responsibilities.” If only…
Be that as it may, there is no question that a writ of habeas corpus is an essential tool for the resolution of human family conflicts. It is certainly the fastest proceeding for the determination of a custody dispute, requiring the parties to appear in court “forthwith or on any day or time certain, as the case requires” (CPLR 7004[d]). Its use is limited to “person[s] illegally imprisoned or otherwise restrained in his [or her] liberty within the state.” This covers children (not chimps) withheld from a parent who was granted legal custody by court order, but also covers those children for whom there is no court order directing custody. In fact, in the absence of a court order, it is the only way to secure the return of a child when one parent takes a child away from the child’s home and refuses to return him or her. Unfortunately, this is an all too common occurrence. A writ is very effective in bringing order back to a household that has erupted in conflict, as the parties are in court usually within a few days, or at most a week from the child’s abduction.
Thankfully, at least for now, there is no requirement that the parent petitioning with a writ prove that the detained child can “bear legal duties, submit to societal responsibility or be held legally accountable for their actions,” as the Third Department required for the proposed chimpanzee writ. The parent need only prove that the child is being kept away from his habitual residence and the care and supervision of a parent. A human parent, to be precise.