dissenting.
Although I can sympathize with what the Court seeks to accomplish in this case today, I cannot reconcile myself to its holding that “§2254 does not confer federal-court jurisdiction,” ante, this page, to consider collateral challenges to state-court judgments involuntarily terminating parental rights. In my view, the literal statutory requisites for the exercise of § 2254 federal habeas corpus jurisdiction are satisfied here — in particular, the requirement that petitioner’s children must be “in custody.” Because I believe the Court could have achieved much the same practical result in this area without decreeing a complete withdrawal of federal jurisdiction, I respectfully dissent.
h-H
Justice Black, speaking for a unanimous Court in Jones v. Cunningham, 371 U. S. 236, 243 (1963), observed that the *517federal writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”
“While limiting its availability to those ‘in custody,’ the statute does not attempt to mark the boundaries of ‘custody’ nor in any way other than by use of that word attempt to limit the situations in which the writ can be used. To determine whether habeas corpus could be used to test the legality of a given restraint on liberty, this Court has generally looked to common-law usages and the history of habeas corpus both in England and in this country.” Id., at 238.
Even a brief historical examination of common-law usages teaches two lessons: first, for centuries, the English and American common-law courts have had the undisputed power to issue writs of habeas corpus ordering the release of children from unlawful custody; and, second, those courts have exercised broad discretion in deciding whether or not to invoke that power in a given case. English common-law courts traditionally were authorized to order the release of minor children from unlawful custody.1 Relying on the English tradition, American state courts very early asserted their own power to issue common-law habeas writs in child-custody matters. See generally Oaks, Habeas Corpus in the States — 1776-1865, 32 U. Chi. L. Rev. 243, 270-274 (1965).
While acknowledging that “habeas has been used in child-custody cases in England and in many of the States,” ante, at 514, the Court suggests that a state court derives its authority *518to issue a writ of habeas corpus in such disputes not from the common law, but from “ ‘the fabric of its reserved jurisdiction over child custody matters.”’ Ante, at 515, quoting Sylvander v. New England Home for Little Wanderers, 584 F. 2d 1103, 1111 (CA1 1978). While such a conclusion is not illogical, it is surely ahistorical. Contrary to the Court’s suggestion, it is not “‘purely a matter of procedural detail whether the [state] remedy is called “habeas” or something else.’” Ibid. A state court’s traditional power to issue a writ of habeas corpus to free a confined child always has been derived directly from the nature of the writ, not from any reserved jurisdiction over child-custody matters.2
The codification of the writ into federal law indicates no congressional intent to contract its common-law scope. The sparse legislative history of the predecessor statute to 28 U. S. C. § 2254, the Habeas Corpus Act of February 5, 1867, ch. 28, § 1, 14 Stat. 385, gave “no indication whatever that the bill intended to change the general nature of the classical habeas jurisdiction.” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 476-477 (1963) (emphasis in original).3 Nor, since *519that time, has this Court ever held that the congressional purpose originally underlying the statute barred use of the federal writ to free children from unlawful state custody.4 The Court’s more recent precedents have firmly established §2254’s “in custody” requirement as its most flexible element, stressing that the test of “custody” is not present physical restraint, but whether “there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.” Jones v. Cunningham, 371 U. S., at 240.
Today the Court bows in the direction of this historical precedent only by leaving open the possible availability of federal habeas if a child is actually confined in a state institution, rather than in the custody of a foster parent pursuant to a court order.5 Ante, at 511, n. 12. At the same time, how*520ever, the Court presents three reasons why federal courts lack “jurisdiction” to issue writs of federal habeas corpus to release children from the latter form of state custody. Not one of these reasons is sufficient to erect a jurisdictional, as opposed to a prudential, bar to federal habeas relief.6
First, the Court restrictively reads Jones v. Cunningham, supra; Carafas v. LaVallee, 391 U. S. 234 (1968); and Hensley v. Municipal Court, 411 U. S. 345 (1973), and deems those three cases to involve only substantial and unusual restraints suffered by individuals “as a result of a state-court criminal conviction.” Ante, at 510 (emphasis added). Yet those decisions plainly drew no distinction between crim*521inal and civil detention. To the contrary, they declared in unusually broad and expansive language that the habeas writ must be vfidely available “as a remedy for severe restraints on individual liberty.” Hensley v. Municipal Court, 411 U. S., at 351.7 Indeed, for its interpretation of the statutory “custody” requirement, Jones itself expressly relied on the fact that at common law, English courts had “permitted a parent to use habeas corpus to obtain his children from the other parent, even though the children were ‘not under imprisonment, restraint, or duress of any kind.’ ” 371 U. S., at 239, citing Earl of Westmeath v. Countess of Westmeath, as set out in a reporter’s footnote in Lyons v. Blenkin, 1 Jac. 245, 264, 37 Eng. Rep. 842, 848 (Ch. 1821).
Second, the Court argues that children living with foster parents somehow are not in the State’s “custody” because “they suffer no unusual restraints not imposed on other children.” Ante, at 511. Yet because unadopted children whose ties with their natural parents have been severed are wards of the State, the State decides where they will live, reserves the right to move them to new physical settings at will, and consents to their marriage, their enlistment in the Armed Forces, as well as all major decisions regarding medical, psychiatric, and surgical treatment. See Tr. of Oral Arg. 7 and 18, citing 23 Pa. Cons. Stat. § 2521(c) (1980).
This Court has found the statutory concept of “custody” broad enough to confer jurisdiction on federal courts to hear *522and determine habeas applications from petitioners who have freely traveled across state borders while released on their own recognizance, Hensley v. Municipal Court, supra, and who are on unattached, inactive Army Reserve duty, Strait v. Laird, 406 U. S. 341 (1972). Under these precedents, I have difficulty finding that minor children, who as state wards are fully subject to state-court custody orders, are not sufficiently and peculiarly restrained to be deemed “in custody” for the purposes of the habeas corpus statute. Cf. Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 501 (1973) (opinion concurring in result); Hensley v. Municipal Court, 411 U. S., at 353 (opinion concurring in result). Equally important, “[w]ith respect to the argument, that some force or improper restraint must be used, in order to authorize the Court in removing an infant from the custody of any one,” historical authorities show that “it is not necessary that any force or restraint should exist on the part of the person having the custody of the infant towards it.” Ex parte M'Clellan, 1 Dowl. 81, 84 (K. B. 1831) (Patteson, J.). Accord: R. Hurd, A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus 455 (1858); W. Church, A Treatise of the Writ of Habeas Corpus 555 (1886).
Third, the Court asserts that “[fjederalism concerns and the exceptional need for finality in child-custody disputes argue strongly against the grant of Ms. Lehman’s petition.” Ante, at 512. While I am fully sensitive to these concerns, once again I cannot understand how they deprive federal courts of statutory jurisdiction to entertain habeas petitions. Although the Court’s decisions involving collateral attack by state prisoners against state criminal convictions have recognized similar federalism and finality concerns, they have never held that those interests erect jurisdictional bars to relief. To the contrary, the Court has carefully separated the question whether federal courts have the power to issue a writ of habeas corpus from the question whether “in some circumstances considerations of comity and concerns for the *523orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.” Francis v. Henderson, 425 U. S. 536, 539 (1976). See also Stone v. Powell, 428 U. S. 465, 478, n. 11, and 495, n. 37 (1976) (“Our decision does not mean that the federal court lacks jurisdiction over such a claim . . .”); Fay v. Noia, 372 U. S. 391, 425-426 (1963).
II
As a matter of history and precedent, then, “[t]here can be no question of a federal district court’s power to entertain an application for a writ of habeas corpus in a case such as this. . . . The issue . . . goes rather to the appropriate exercise of that power.” Francis v. Henderson, 425 U. S., at 538-539. Cf. 648 F. 2d 135, 155 (CA3 1981) (en banc) (Seitz, C. J., concurring). In my view, the difficult discretionary question in this case is whether, 11 years after petitioner voluntarily relinquished her sons to state custody and 4 years after the involuntary termination of her parental rights was affirmed on direct appeal, she remains a proper “next friend” to apply for the federal habeas writ on behalf of her natural children.
As amended in 1948, the federal habeas statute permits a third-party application for habeas relief only if it is “signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” 28 U. S. C. §2242 (emphasis added). “But one who so signs and verifies does not thereby become the applicant”; the person under detention remains the real party in interest. Nash ex rel. Hashimoto v. MacArthur, 87 U. S. App. D. C. 268, 270, 184 F. 2d 606, 608 (1950), cert. denied, 342 U. S. 838 (1951). For that reason, the “next friend” application has been uncommonly granted, see Weber v. Garza, 570 F. 2d 511, 513-514 (CA5 1978); United States ex rel. Bryant v. Houston, 273 F. 915, 916 (CA2 1921); United States ex rel. Funaro v. Watchorn, 164 F. 152, 153 (CC SDNY 1908), and has not been made available automatically even to the natural parents of a habeas *524petitioner. See, e. g., Evans v. Bennett, 467 F. Supp. 1108, 1110 (SD Ala. 1979). Cf. Gilmore v. Utah, 429 U. S. 1012, 1013-1014 (1976) (Burger, C. J., concurring).
Historically, the English common-law courts permitted parents to use the habeas writ to obtain custody of a child as a way of vindicating their own rights. American common-law courts, however, soon relied on Lord Mansfield’s language in King v. Delaval, see n. 1, supra, to resolve custody disputes initiated by way of a habeas writ in a manner best adapted to serve the welfare of the child. See Oaks, Habeas Corpus in the States — 1776-1865, 32 U. Chi. L. Rev., at 270 and 274. Thus, the American common-law rule came to be that “the parent stands in court as the real party in interest, upon his natural right of parent; but he is liable to be defeated by his own wrongdoing or unfitness and by the demands and requirements of society that the well-being of the child shall be deemed paramount to the natural rights of an unworthy parent.” Hand, Habeas Corpus Proceedings for the Release of Infants, 56 Cent. L. J. 385, 389 (1903).
Similarly, the federal courts have interpreted the writ as being available only to serve the best interest of the child. “ ‘When a party comes here, using the privilege of acting on the behalf and as the next friend of infants, it is his bounden duty to show that he really acts for the benefit of the infants, and not to promote purposes of his own.’” King v. McLean Asylum of Massachusetts General Hospital, 64 F. 331, 356 (CA1 1894), quoting Sale v. Sale, 1 Beav. 586, 587, 48 Eng. Rep. 1068, 1069 (1839). “[I]n such cases the court exercises a discretion in the interest of the child to determine what care and custody are best for it in view of its age and requirements.” New York Foundling Hospital v. Gatti, 203 U. S. 429, 439 (1906).8
*525Against this historical background, then, I find most telling the Court’s observation that “Ms. Lehman simply seeks to relitigate, through federal habeas, not any liberty interest of her sons, but the interest in her own parental rights.” Ante, at 511. As the Court notes, the record reveals no evidence that any of the sons wanted to return to their natural mother. See ante, at 504, n. 2. Moreover, in filing her federal habeas petition, petitioner expressly did not seek to disturb the state trial court’s factual findings. See Brief for Petitioner 6. Those findings made “absolutely clear . . . that, by reason of her very limited social and intellectual development combined with her five-year separation from the children, [petitioner] is incapable of providing minimal care, control and supervision for the three children. Her incapacity cannot and will not be remedied.” In re William L., 477 Pa. 322, 345, 383 A. 2d 1228, 1239-1240, cert. denied sub nom. Lehman v. Lycoming County Children’s Services, 439 U. S. 880 (1978).
On such a record, I believe that the District Court could have found, as a discretionary matter, that petitioner had not made a sufficient showing that she acted in the interests of the children to warrant issuing her the writ as their “next friend.”9 Indeed, I believe that the common-law habeas *526corpus tradition would have supported recognition of broad district court discretion to withhold the writ in all but the most extraordinary cases, where the district court had strong reason to believe both that the conditions of the child’s confinement unconstitutionally constrained that child’s liberty, and that release of the child to his natural parent very likely would serve the child’s best interest.
Such a ruling would not have been inconsistent with the Court’s decision today, which expressly bases denial of habeas relief on a need to reserve the federal writ “for those instances in which the federal interest in individual liberty is so strong that it outweighs federalism and finality concerns.” Ante, at 516. Indeed, I cannot understand why the Court’s explicit balancing approach yields a strict jurisdictional bar. A discretionary limit would have allowed the writ to issue only in those very rare cases that demanded its unique “capacity to . . . cut through barriers of form and procedural mazes.” Harris v. Nelson, 394 U. S. 286, 291 (1969). Because the Court overrides contrary history and precedent to find that habeas jurisdiction does not lie, I dissent.
In King v. Delaval, 3 Burr. 1434, 1436-1437, 97 Eng. Rep. 913, 914 (K. B. 1763), Lord Mansfield declared:
“In cases of writs of habeas corpus directed to private persons ‘to bring up infants,’ the Court is bound, ex debito justitiae, to set the infant free from an improper restraint: but they are not bound to deliver them over to any body nor to give them any privilege. This must be left to their discretion, according to the circumstances that shall appear before them.
“The true rule is, ‘that the Court[s] are to judge upon the circumstances of the particular case; and to give their directions accordingly.’”
See, e. g., R. Hurd, A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus 454-521 (1858); W. Church, A Treatise of the Writ of Habeas Corpus 555-557 (1886); L. Hochheimer, A Treatise on the Law Relating to the Custody of Infants 156-162 (1887); H. Clark, The Law of Domestic Relations in the United States 578-580 (1968); Bantz, Habeas Corpus — Custody of Infant, 15 Cent. L. J. 281, 281-282 (1882) (footnote omitted) (The writ “is granted on the application of the parent, guardian or master to inquire into the legality of the restraint of the child, ward, etc.; and its object is, not to enforce a right of custody, but to remove unlawful restraint”); Hand, Habeas Corpus Proceedings for the Release of Infants, 56 Cent. L. J. 385, 388 (1903) (“Whenever the parent seeks to recover a child from any third person, the approved remedy is habeas corpus”); Oaks, Habeas Corpus in the States — 1776-1865, 32 U. Chi. L. Rev. 243, 273 (1965).
To the contrary, the legislators plainly intended to enact “a bill of the largest liberty” that would not “restrain the writ of habeas corpus at all” and would “enable the courts of the United States to enforce the freedom, *519of the wife and children of soldiers of the United States, and also to enforce the liberty of all persons.” Cong. Globe, 39th Cong., 1st Sess., 4151 (1866) (remarks of Rep. Lawrence) (emphasis added).
In Wales v. Whitney, 114 U. S. 564 (1885), which early delineated the forms of “custody” subject to the writ, the Court stated:
“There is no very satisfactory definition to be found in the adjudged cases of the character of the restraint or imprisonment suffered by a party applying for the writ of habeas corpus, which is necessary to sustain the writ. . . . Wives restrained by husbands, children withheld from the proper parent or guardian, persons held under arbitrary custody by private individuals, as in a madhouse, as well as those under military control, may all become proper subjects of relief by the writ of habeas corpus.” Id., at 571 (emphasis added).
In In re Burrus, 136 U. S. 586 (1890), and Matters v. Ryan, 249 U. S. 375 (1919), this Court refused to permit the federal writ to be used in private child-custody disputes, stating in dictum that matters of family law are reserved for the States. As the Court correctly notes, however, ante, at 511-512, those cases dismissed habeas petitions for want of federal-question jurisdiction, and thus did not generally deny the federal courts power to issue writs of habeas corpus in child-custody cases.
Notwithstanding their conclusions that federal habeas “jurisdiction” does not lie in child-custody cases, neither plurality opinion in the Court of *520Appeals was willing to foreclose a federal court’s power to issue the writ to secure a child’s release from state custody under extreme circumstances. See 648 P. 2d 135, 144 (CA3 1981) (en banc) (Garth, J., announcing the judgment of the court) (“ ‘Were [the Lehman boys] incarcerated in a state home, or were there other issues making this truly a struggle for liberty by one imprisoned under the aegis of the state,’ the writ might well be available”) (citation omitted; emphasis in original); id., at 152, n. 35 (Adams, J., concurring) (“Should the children be in state custody against their will, it is even possible that habeas would be an appropriate vehicle for the legal attack”). See also Sylvander v. New England Home for Little Wanderers, 584 F. 2d 1103, 1113 (CA1 1978) (leaving open the possibility that federal habeas corpus might be available to free a child from state custody).
I disagree with the Court’s announcement that “no principled basis” would exist for limiting the approval of federal habeas jurisdiction in child-custody disputes. Ante, at 512, n. 15. When, as in this case, the State both initiates the challenged judicial proceedings and remains the ongoing legal custodian of the child, subject to state-court order, the state action is' plainly sufficient to create “custody in violation of the Constitution ... of the United States” for § 2254 purposes.
Intrafamily disputes, however, are ordinarily privately initiated and result in private custody. If a child’s natural parents disputed custody, and a state court awarded custody to one of them, a legitimate question would arise whether that person “may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U. S. 922, 937 (1982). See also Dennis v. Sparks, 449 U. S. 24, 28 (1980) (“Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a. . . joint actor with the judge”).
See Jones v. Cunningham, 371 U. S., at 243 (the “grand purpose” of the writ is “the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty”); Carafas v. LaVallee, 391 U. S., at 238 (the “province” of the writ “is to provide an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of a person”); Hensley v. Municipal Court, 411 U. S., at 350 (“[W]e have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements. . . . That same theme has indelibly marked our construction of the statute’s custody requirement”).
Presiding over United States v. Green, 26 F. Cas. 30 (No. 15,256) (CC RI 1824), Justice Story concluded:
“[T]he right of the father to have the custody of his infant child ... is not on account of any absolute right of the father, but for the benefit of the *525infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education. When, therefore, the court is asked to lend its aid to put the infant in the custody of the father, and to withdraw him from other persons, it will look into all the circumstances, and ascertain whether it will be for the real permanent interests of the infant; and if the infant be of sufficient discretion it will also consult its personal wishes. ... It is an entire mistake to suppose the court is at all events bound to deliver over the infant to his father, or that the latter has an absolute vested right in the custody.” Id., at 31-32.
Petitioner’s colorable claim that her own constitutional rights were infringed would not have entitled her automatically to serve as a “next friend.” As Judge Adams’ concurring opinion in the Court of Appeals observed:
“Even if we assume that the statute under which the termination occurred, and which survived attack in the state courts, is unconstitutional, it is *526highly possible that Mrs. Lehman, in challenging the statute ostensibly on behalf of the children, may actually be asserting an interest that derogates from the child’s interest. That is, the child's interest in a sound family environment that the state statute was intended to protect may not be properly represented by the parent’s demand for family unity. . . . [WJhat is questionable here is her right to resort to a habeas petition, which can be framed only on behalf of her children.” 648 F. 2d, at 154 (footnote omitted).
I disagree, however, with Judge Adams’ conclusion that petitioner lacks “standing to assert [a federal habeas] action on behalf of the three children.” Id., at 155. As Judge Rosenn correctly responded in dissent, petitioner plainly has standing in a constitutional sense to challenge the violation of her own rights. The question here, however, is whether “Ms. Lehman may not be the best — or even a proper — relator in this action.” Id., at 156, n. 2. Cf. id., at 154, n. 47 (Adams, J., concurring).