By Gabriela Bonilla Updated Sep 20, 2022
Seeking emergency custody can leave parents feeling a little frantic. You want to do the best for your children and must ensure you’re approaching the process correctly. Emergency custody is a serious situation, and you need to ascertain that you’re making the correct decisions for your situation and preventing complications from arising.
What Is Emergency Temporary Custody?
Temporary emergency custody is a situation where extreme circumstances that threaten the safety of children will prompt the courts to intervene immediately. Children are placed under the care of a safe guardian, and the unsafe guardian is prohibited from caring for them.
Temporary emergency custody will be granted in cases when a child or a sibling of that child faces the threat of immediate harm. It can be given after a child has been harmed or someone has threatened to harm the child.
Temporary emergency custody may also be granted if one of the child’s parents suffers from alcohol use disorder or a substance use disorder that would inhibit their ability to be a safe caregiver.
What Happens After Emergency Custody Is Granted?
If the circumstances are extreme, a judge may grant emergency custody “ex parte”, which means that the other parent doesn’t need to be present or even aware of the situation. Ex parte emergency custody is usually only granted if the parent has a documented history of abusive behavior, is in jail for abusive behavior, or is evading law enforcement.
In all other situations, the court has to follow a specific set of procedures that allow the opposing parent to speak for themselves. This can be difficult if the other parent is challenging.
Court Hearing Notice
When you file for emergency custody, the opposing parent is granted an opportunity to be heard by the court before making a final determination. The parent needs to be served a court notice informing them of the situation and telling them when to appear. Most of the time, you’re responsible for helping court orders to the opposing parent.
There are many reasons why it’s not a good idea to confront someone with a court order. You will only file for emergency custody if you perceive an unsafe situation. Handing a volatile person a piece of paper that might make them angry may put you at risk.
It’s a much safer decision to hire a professional server to serve the document. It will cost you a little bit of money, but you can’t put a price on your family's safety. Let an impartial stranger do the hard work.
The opposing parent will have an opportunity to speak in court. They can defend themselves against any allegations that you make. It’s not their job to prove that they’re a safe caregiver. It’s your job to prove that they’re an unsafe caregiver. You need to bring and present evidence that demonstrates that your child will be in sufficient danger if left in the care of the opposing parent.
When Is Emergency Custody the Right Option?
Emergency custody is best reserved for particular situations. It’s only necessary for situations where a child may be placed directly in harm’s way under the control of the opposing parent.
The main reasons you might seek emergency custody:
- Child abandonment
- Child abuse or mistreatment
- Domestic violence
Abandonment is easy to prove. Previous arrests or police visits can be used to prove domestic violence. If a parent has documented child abuse or if the family has received visits from child protective services, it’s easy to make a case for emergency custody on the grounds of child abuse.
Child mistreatment can refer to actual injustice or threatened unfairness. This mistreatment can be verbal or physical. Emotional abuse or a child deliberately instilling fear in a child is abusive behavior, even if the opposing parent doesn’t follow through. The court would instead intervene than wait for the situation to escalate to a point where a child may be physically harmed.
Who Can File for Emergency Custody?
Any parent or legal guardian can file for emergency custody if the opposing parent or guardian threatens a child’s safety or wellbeing.
In rare cases, grandparents, aunts, and uncles had successfully filed for emergency custody when both parents were unfit caregivers. This situation most frequently occurs when both parents are in legal trouble or dealing with substance use disorders. It can also happen when both parents are physically or verbally abusive to their children.
How To File for Emergency Custody
Before filing for emergency custody, the best thing would be to speak with a lawyer. A lawyer can help you properly raise your argument and strengthen the chances that you’ll be granted emergency custody.
If you don’t have time or funding for a lawyer, you can file at your local courthouse. There will be a filing fee, but in some cases, courthouses will waive the filing fee for emergency documents if you cannot pay.
After you file for emergency custody, the court will give you the necessary documents you need to serve the opposing parent. This is where it’s wise to hire a process server rather than to confront the opposing parent who may be angry or volatile.
Burden of Proof
Since you’re the one who filed for emergency custody, it’s up to you to prove the grounds for that custody. Photographs, videos, text messages, and previous incident reports can be used to show that the opposing parent poses a substantial danger to your child.
The opposing parent will have an opportunity to defend themselves and explain their position. You never know what they may say. There is no such thing as having too much evidence to support your case. Be ready to refute justifications where necessary.
How Do Courts Handle Emergency Custody Filing?
Since the filing is an emergency, the court will review it the same day. After reviewing the filing, the court will either determine enough evidence to grant emergency custody or deny the request.
Courts will deny the request if you don’t have a sufficient basis or if they don’t feel the situation is an emergency. For example, an argument between you and the opposing parent gets heated, but it doesn’t directly impact your children. This situation doesn’t warrant emergency custody.
Emergency custody is a dire situation. Although you need to move if you feel your children are in danger, you cannot afford to make mistakes. You need to be as prepared as possible to increase the chances of having emergency custody granted, and you need to collect enough evidence to demonstrate to the courts that your child is unsafe with the opposing parent.
If you are currently married to the opposing parent, filing for divorce as soon as possible is essential. With divorce will come formal custody arrangements, and you’ll be able to file for sole custody if the opposing parent poses a persistent danger to your children. Always put your kids first.