What is emergency custody? Why would you need to file for an emergency custody order, and if you do need to, how are you supposed to go about it? For parents who are divorced or separated and share custody with another parent, this can be important information to know. Take a look at what you need to know about emergency custody and how to file for emergency custody in California.
Why Would You Need Emergency Custody Order?
Even if you have a contentious relationship with your ex, you might not want to believe that they’d ever pose a danger to your children. But sadly, sometimes children are at risk of harm from one of their parents. As a parent, it’s your responsibility to take the necessary steps to protect your child, and sometimes that means filing for emergency custody.
Emergency custody orders can be filed when the child is at risk for injury, physical or sexual harm, death, or extreme emotional harm from the other parent or in the home of the other parent. They can also be filed when the child is at risk for being taken from their jurisdiction against the custody order – in other words, when the child is at risk for parental kidnapping.
How to File for an Emergency Custody Order
There are a number of forms that you have to fill out in order to file a motion for emergency custody. These include:
- Order to Show Cause
- Temporary Orders
- Application for Order
- Supporting Declaration
- Proof of Service
You’ll want a copy for your own records, of course, but you’ll also need a copy for the other parent, a copy for their attorney, if they have one, and a copy for the California Department of Child Support Services if they are a party to your case. Depending on the situation, you may have to give your ex and their attorney, if they have one, unfiled copies of the forms. However, if you believe your child to be in immediate danger of harm or kidnapping, you may be able to skip this step in order to avoid tipping your hand about the emergency petition to your ex.
What About Evidence?
A request for emergency custody is a serious matter, and the court doesn’t take it lightly. They’ll want to see some evidence that your child actually is in danger, so it’s important to take care to gather the correct evidence. Some of the things that could be used as evidence in an emergency custody order hearing includes (but is not limited to):
- Police reports
- Medical and dental records
- Records of prior relevant convictions of your ex
- Records from Child Protective Services
- Records from the child’s psychologist
Without evidence to support your claims, a family court will be unable to make a determination of emergency custody. The children named in the emergency custody order also must be in the state at the time in order for the court to make an emergency custody ruling, and the court will need to conduct a full hearing at which all parties have the opportunity to be heard.
Serving the Papers
After you file all of the relevant documents with the court, you can pick them up from the clerk’s office, and at this point, they can be served. However, it’s important to note that as the child’s parent, you are not allowed to serve the papers on the child’s other parent. Instead, you’ll need to either hire a process server or enlist another legal adult who is eligible to serve the paperwork to your ex.
What to Expect From an Emergency Custody Hearing
During the emergency hearing, the judge will usually only hear evidence that pertains to the emergency issue at hand. For example, if the parent petitioning for emergency custody alleges that their child has been abused by the other parent, the judge will hear evidence related to that, but probably won’t hear evidence showing that the other parent has not been paying their alimony or hasn’t been cooperating with other parts of the divorce settlement – that evidence can be dealt with in a different proceeding at a different time.
The judge can either approve or deny the petition for emergency custody, but those are not their only options. They can also issue a temporary order for emergency custody and assign the child a guardian ad litem or a social worker who will be able to further investigate the situation and make a recommendation for custody going forward. This is a relatively common outcome.
If you receive a temporary order, you need to understand that it can be terminated, changed, or modified at a later date – sometimes at a full trial that will explore all aspects of the evidence and give the accused parent a chance to present their own case. If you submitted evidence at the emergency hearing, you’ll need to be prepared to resubmit it at a full trial, along with any additional evidence collected in the interim.
The court will make its decision – both at the emergency hearing and later at a trial – based on the best interests of the child standard. That means that their job is to decide what will be best for the child, not necessarily what either parent wants. Their first job is to look out for the physical, mental, and emotional safety of the child. Some petitions for emergency custody are fairly straightforward, but others are more complicated. You are not required to hire an attorney to file for emergency custody, but you may want some legal guidance to help you through the process.
A legal resource group like National Family Solutions can be helpful in this situation. They can help you with document preparation and storage, compiling evidence, and preparing testimony for court. A legal resource group isn’t the same as hiring a lawyer, but it can give you the legal guidance that you need to advocate for yourself without the high cost of a family law attorney.