United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Andrew Steinhilber filed a “Petition for Writ of Habeas
Corpus” (filing no. 1) on August 23, 2019 and
paid the $5.00 filing fee. Upon preliminary review of the
petition, the court determines that this matter must be
dismissed for lack of subject matter jurisdiction.
SUMMARY OF PETITION
alleges he is the biological father of two minor children,
M.S. and O.S., and Respondent Sarah Rachel Barsell
Steinhilber is unlawfully detaining and withholding custody
of M.S. and O.S. from Petitioner with the intent to
permanently move the children from Nebraska to Texas.
Petitioner asks this court to issue a writ of habeas corpus
requiring Respondent to appear and produce the children
before this court and show cause why custody should not be
restored to Petitioner.
initial matter, the court construes the “Petition for
Writ of Habeas Corpus” as being filed pursuant to 28
U.S.C. § 2241, which grants “federal district
courts, ‘within their respective jurisdictions,'
the authority to hear applications for habeas corpus by any
person who claims to be held ‘in custody in violation
of the Constitution or laws or treaties of the United
States.'” Rasul v. Bush, 542 U.S. 466, 473
(2004) (quoting 28 U.S.C. §§ 2241(a), (c)(3)).
Accordingly, the court conducts this initial review of the
petition pursuant to 28 U.S.C. § 2243 and Rule 1(b) of
the Rules Governing Section 2254 Cases in the United
States District Courts which allows the court to apply
Rule 4 of those rules to a section 2241 action. Rule 4
provides that the court shall conduct an initial review of
the application for habeas corpus and summarily dismiss it,
order a response, or “take such action as the judge
deems appropriate.” See Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts. The court may summarily dismiss an
application without ordering a response if it plainly appears
from the face of the application and its exhibits that the
petitioner is not entitled to relief. See id.; 28
U.S.C. § 2243.
Petitioner seeks to litigate a private custody dispute
between himself and Respondent. The court cannot grant such
relief in a habeas corpus action. Neither Petitioner nor his
children are in the custody of the State of Nebraska in
violation of federal law. Indeed, the only issue Petitioner
seeks to litigate is his right to custody of his minor
children. “[I]n general, . . . federal courts have no
jurisdiction in habeas corpus to determine parents' right
to custody of their minor children, even if it is alleged
that custody was obtained by means that violate the Federal
Constitution.” U.S. ex rel. Mueller for & on
Behalf of Mueller v. Missouri Div. of Family Servs., 123
F.3d 1021, 1023 (8th Cir. 1997) (citing Lehman v.
Lycoming Cnty. Children's Services Agency, 458 U.S.
502 (1982)). The court, therefore, concludes that summary
dismissal of the petition is warranted here.
if the court were to construe the petition as asserting a
claim under 42 U.S.C. § 1983, the court would lack
jurisdiction pursuant to the domestic relations exception to
federal court jurisdiction. It is well-settled that
“the whole subject of the domestic relations of husband
and wife, parent and child, belongs to the laws of the States
and not to the laws of the United States.” In re
Burrus, 136 U.S. 586, 593-94 (1890). Although this
domestic relations exception to federal jurisdiction does not
apply to a civil action that merely has domestic relations
overtones, federal courts lack jurisdiction where the action
is a mere pretense and the suit is actually concerned with
domestic relations issues. See, e.g., Drewes v.
Ilnicki, 863 F.2d 469, 471 (6th Cir. 1988). Here, the
substance of Petitioner's claims clearly concerns state
law domestic relations matters.
THEREFORE ORDERED that:
petition for writ of habeas corpus (filing no. 1) is
dismissed without prejudice.
court will enter judgment by separate document.
 Petitioner does not allege that the
custody of the minor children at issue is the subject of any
state-court proceeding nor was the court able through its own
search of state court records to locate any Nebraska