A child’s safety and well-being are essential in any legal jurisdiction. With its intricate family structures and diverse populace, California has established rigorous rules to ensure a child’s safety when granting custody. Emergency child custody, also known as temporary child custody, is a legal mechanism that seeks to address a threat to a child’s well-being. It allows a parent to seek immediate custody of a child in danger, usually without a court hearing. Some of the common dangers that children face include abuse, abandonment, or a threat of abduction. You should seek the services of a family law attorney to know more about an emergency custody order or apply for one.
Emergency Custody Order Explained
The judge can grant emergency custody, granting one parent or a third party temporary custody of a child. This is done because an urgent situation threatens the child's physical safety or well-being. It is a court order because an applicant must petition the right court and have the judge issue an order. The accused parent can be found in contempt of the court if he/she fails to observe the order.
An emergency custody normally grants temporary custody. An individual cannot obtain permanent child custody in an emergency custody order. A parent or guardian can only seek emergency custody if there is an immediate threat to the child. Most people disagree over what amounts to ‘’immediate’’, but the threat must be imminent and real. Potential risks that can occur in the future are not considered as immediate threats. Additionally, the law only allows an applicant to pursue emergency custody if the child is in danger of physical harm. Inattention to the child’s needs, uncomfortable living conditions, and offensive conduct are enough to justify emergency custody.
The main aim of securing an emergency custody order is to provide instant protection to the child when necessary. The application process moves faster than that of a regular custody application. Emergency custody can be secured ex parte, meaning an applicant can obtain this order without the other spouse's input. However, applicants should seek the services of a skilled child custody attorney to make the process seamless.
Grounds For Seeking Emergency Custody
A parent or guardian can consider filing for an emergency custody order if he/she is concerned about a child's safety. However, valid and legal grounds must exist to pursue an emergency custody order. Most cases involve child abuse or domestic violence, but custody can still be granted based on other factors. For example, the court can intervene if one of the partners threatens to take the child out of state without consent. The judge can also grant an emergency custody order when the parent with custody has been arrested and cannot care for the minor. The order can also be justified if there is sufficient evidence that one of the partners cannot offer enough care for the child.
The common reasons for an emergency custody order include the following:
Questionable Individuals In The Home
If the child is in one parent's custody, the other parent cannot question whom their ex-spouse invites into their home. However, the law allows the non-custodial parent or guardian to pursue an emergency custody order if the custodial parent brings sex offenders or other people who can pose a danger to the child.
Physical or Mental Health Conditions
The law allows one parent to file for an emergency custody order if the other parent is struggling to handle their parenting duty because of health issues.
Substance Abuse Issues or Other Criminal Activity
One parent can be put in rehab or arrested for struggling with addiction issues or being involved in criminal activities like drug manufacturing or driving while intoxicated. In this case, the other parent can petition for an emergency order and modify the custody later.
Child Abuse or Neglect
Parents have a right under California law to petition the court to assist them in removing a child from a spouse’s home if the child is being abused or neglected. It is also lawful to do so if a parent or guardian believes their child is in imminent danger.
Domestic Violence
An applicant can petition the court for emergency custody and temporary protective orders if their child is experiencing abuse at the hands of their partner.
Who Can Petition For Emergency Custody
The law allows any parent or legal guardian to petition the court for emergency custody if the accused parent threatens the safety or well-being of the child. On rare occasions, uncles, aunts, and grandparents can be allowed to file for emergency custody if the child’s parents or legal guardians are unfit caregivers. This case can also happen if the parents are dealing with substance use disorders or are in legal trouble. The court can also allow this if the child's legal parents or guardians are verbally or physically abusive to their children.
Preparing A Petition For An Emergency Child Custody Order
Gathering essential documentation to support a case is vital to preparing for filing an emergency child custody order. Applicants must familiarize themselves with the qualification requirements and understand the rules and procedures of the local court regarding an emergency custody order. They must also prepare all the necessary details and supporting documents, which can assist in strengthening the emergency custody lawsuit.
Sometimes, the court can grant emergency custody the same day the applicant turns in the application forms or the following working day. At that time, the judge will also set a date to determine whether the custody should be extended or changed.
An applicant should gather essential documents before filing a request for emergency custody. Some of the crucial documents include:
- Witness statements
- Medical records
- Police reports
Applicants must provide evidence supporting the allegations of immediate danger or harm to the child. The evidence can include a detailed affidavit highlighting the specific reasons for seeking emergency custody. With the help of an attorney, the applicant should prepare copies of all documents and store them in a safe place for easy access. The parent or guardian seeking custody should follow the guidelines or requirements the local judge sets when submitting the documentation.
The judge will demand a substantial risk of immediate danger or harm to the child. When determining the applicant’s eligibility, the judge will take into account factors like neglect, child abuse, and domestic violence. The judge will also take into account potential harm to the child and the urgency of the situation if a regular custody hearing is delayed.
Applicants must provide enough evidence and documentation to support the allegations of emergency custody. The court will not consider an emergency case if the issue between the spouses revolves around child support or visitation. Applicants should seek the services of an attorney who specializes in family law. An attorney can help determine the applicant’s qualifications based on the specific circumstances.
The Process Of Securing An Emergency Child Custody
The party seeking custody must file a petition with the court and provide evidence supporting the need for emergency custody to secure it. If possible, the applicant will be required to attend a hearing. Seeking emergency custody involves a legal process that gives the applicant a chance to assume temporary guardianship of a child during an ongoing custody case or in situations where the immediate welfare of a child is at risk.
First, the party applying for custody must understand their jurisdiction's emergency custody laws and guidelines. This includes the criteria the judge follows when granting emergency custody and the forms that must be filled out. The applicant should gather all essential documentation supporting the emergency custody request. This can include:
- Evidence of the current living circumstances of the child
- Evidence of the applicant’s relationship with the child, and
- Any proof that supports why emergency custody is in the best interest of the child
After filing the petition, the parent or guardian seeking custody must officially inform the other parent or partner of their request for emergency custody. This process is called ‘’service,’’ and it must be done under the laws of the California jurisdiction, which usually requires the applicant to use another person to deliver the documents.
Court Hearing Notice
The accused parent can present their case in court once the other parent has filed a petition for emergency custody. This will happen before the judge makes the final ruling on the case. The applicant should serve their partner with the notice, notifying them about the situation and letting them know when to appear in court.
It is not wise to confront the custodial partner with a court order. A parent or guardian can only petition the court for emergency custody if he/she perceives an insecure situation. The applicant can be at risk if he/she hands a piece of paper to a volatile individual, making them angry. It is a wise decision to seek the services of a professional server to serve the document. The applicant will incur some expenses but cannot put a price on their safety. Give an impartial stranger a chance to do the work.
Emergency Custody Hearing
The process of emergency custody always moves faster than a standard petition. The judge will set the hearing within 24 hours once the applicant has filed the petition. The judge will do the following during the hearing:
- Evaluate any evidence included in the petition
- Receive any extra evidence
- Listen to the applicant’s testimony and that of the other parent
The judge will take into account several factors while making their decision, which can include:
- Whether the accused parent has a criminal history or a record of mental health issues or substance abuse
- The impact of the stability and continuity of the current living arrangements of the child
- The evidence of neglect, emotional or physical abuse
- The severity and immediacy of the alleged threat
The hearing can also continue without the accused parent. However, this does not mean the applicant will win the case automatically. The judge will be careful during their ruling because the petition requests the child's removal from the other spouse's custody. Consulting a child custody attorney is vital if you are considering applying for an emergency custody hearing or if you receive a court order seeking to withdraw your child custody rights.
After The Emergency Custody Hearing
The court will grant the temporary emergency custody if the applicant’s petition prevails. The judge will set a second hearing once the order is entered. A second hearing usually takes place within 14 days. The emergency custody will be effective until the second hearing. The accused parent can table their evidence in court during the second hearing. This will be the time to challenge the new custody arrangement. In this situation, the possible outcome can be as follows:
- If the court affirms its previous ruling, the judge will convert the emergency custody order to a regular temporary custody order. The new custody order can include stipulations, such as the need to revisit the situation after some time.
- If the judge determines that an emergency custody order is unnecessary, the case will be reverted to the previous custody order.
Therefore, you should always be ready for the second hearing, regardless of what is on your side.
Emergency Custody And The Period Of Temporary Child Custody
After granting emergency custody, temporary child custody will be issued. Temporary child custody is meant to last until the judge makes a more sound ruling about the child’s permanent living arrangements based on the best interests of the child. If emergency custody is part of a separation or divorce process, the duration can be influenced by the period to finalize the divorce and reach a long-term custody arrangement. The period the legal proceedings can take will depend on the following:
- The cooperation between the spouses
- The backlog in the courts
- The complexity of the case
The judge prioritizes the child’s best interests while making temporary custody determinations. Temporary custody arrangements can be extended if necessary for the child's stability and well-being, particularly when changing the arrangement can be harmful or disruptive. The duration of temporary child custody can be influenced by resolving issues that have led to the need for emergency custody. For example, emergency custody can be granted because of a parent’s incarceration, mental health problem, or substance abuse. In this case, the custody arrangement can be in place until the parent shows improvement and capacity to offer a stable environment for the child. Any significant change can influence the period of emergency custody in the child's circumstances. This includes new evidence about the child's welfare, changes in financial stability, or relocation.
Sometimes, the judge can set certain conditions that must be met before a temporary custody arrangement is terminated or modified. This can include:
- Ensuring secure living conditions
- Securing stable employment
- Attending rehabilitation programs and
- Completing parenting classes
The duration of temporary child custody can also be affected by searching for permanent custody solutions and exploring alternative arrangements like adoption.
The Effect Of An Emergency Custody Order On Existing Custody And Visitation Arrangements
The effect of an emergency custody order on the existing custody arrangements will be temporary. Emergency custody is usually granted if a child is in immediate danger or harm. Visitation schedules can be modified, and interaction with other parents can be limited. Proof of immediate danger is vital for securing an emergency custody order. Once the emergency is resolved, the judge will re-evaluate the arrangement based on the child's interest. A status quo is one of the temporary orders that can be secured. This order prevents the spouses or guardians from:
- Changing the child’s normal schedules
- Changing where the child stays, and
- Interfering with the parenting time of either partner
A status quo order does not determine custody or the partner that can make significant decisions for the child.
Pursuing emergency custody in California is sensitive and complicated. Applicants must first understand the implications and purpose of the order, the eligibility criteria, and the documents required. Following the right steps is also important after preparing a request. Applicants should also be ready to consider possible outcomes after filing a petition. Some of the potential outcomes can be securing the order or the effects of the order on the existing custody arrangements. You should consult a skilled family law attorney because navigating the legal system can be overwhelming. A will will take you through the process and protect your rights and the child's best interests.
Find A Skilled Child Custody Attorney Near Me
An emergency custody order is suitable for situations where a child faces a danger of immediate harm. A parent or guardian can petition the court for an emergency custody order upon establishing that the other child is in danger. These orders are processed quickly, sometimes within hours or days. The hearings can be ex parte, meaning the other parent does not have to be present. This order is temporary, meaning it offers a solution to an immediate crisis and allows more time for a further review of the process. A temporary order can only be granted if the judge believes a child’s well-being is at risk. If you need more information on an emergency custody order or help in applying for it, an attorney can help. At the Los Angeles Divorce Lawyer, we have experienced attorneys with a vast understanding of emergency custody orders. Contact us at 310-695-5212 to speak to one of our attorneys.
