Emergency Custody Order in California: What to Know
If your child or children need immediate protection, then an emergency custody order is your solution. Learn all about it, including why it’s important to hire legal assistance.
Read on now.
Introduction
If you are concerned about your child’s safety when it comes to the other parent, you may want to modify your custody order. However, to do so typically involves a lot of legal paperwork with a hearing in front of the judge — and it can take weeks (or months) to make it happen. Even then, there is no guarantee as both parties need to agree to the modifications.
So, what do you do if you are concerned with your child’s immediate risk of danger? An ex parte order can be granted by the judge to temporarily change the custody order if you can prove there is a reason to do so. This can be done quickly on an emergency basis and both parties do not have to agree.
Emergency custody orders in California are a way to protect children. And here is what you need to know about them.
Emergency Custody Orders
Emergency custody orders fall under California Family Code Section 3064. This allows you to temporarily change the custody order while waiting on the full hearing. The legal system is put in place to protect kids — and in times when safety is in question, it is imperative that steps are available to take action immediately.
Though, before moving for an emergency custody order, you may want to consider reasoning with the other parent. Asking him or her to agree to a temporary change informally may resolve the situation without having to go through the formal process. Sometimes working together with a mediator can lead to better outcomes.
If the relationship is not amicable or mediation or the informal process is not an option, then you may need to move forward with petitioning the court for an ex parte order granting the temporary custody change. The reason for the motion needs to be warranted.
Reasons an Emergency Custody Order is Granted
So, under what circumstance constitutes an emergency? There are several reasons why a judge may consider issuing a temporary adjustment to a custody order – and it all involves the safety of the child or children.
A few of the reasons emergency custody orders are sought include:
- Indications that domestic violence may be taking place in the other parent’s home.
- Allegations that the child is the victim of sexual abuse, physical abuse, or neglect.
- An indication that the other parent may be suffering from mental illness.
- Notification that a sexual offender may be residing in the other parent’s home.
- The other parent’s arrest for drug use, drunk driving, or other serious crime.
Remember that having suspicions or assumptions isn’t enough for the temporary order to be issued. You need to be able to prove that it is happening, whether through documented sources, photos, witnesses, police reports, etc.
If you are not sure whether you have enough evidence or the right evidence for the judge, it is a good idea to consult with a lawyer.
Notice Requirements for an Emergency Order
Whether you want to or not, if you decide to move forward with filing for an emergency order, you are required to notify the other parent at least 24 hours before the hearing. According to California Rule of Court 5.151(e), the notice needs to state:
(e) Contents of notice and declaration regarding notice of emergency hearing
(1) Contents of notice
When notice of a request for emergency orders is given, the person giving notice must:
(A) State with specificity the nature of the relief to be requested;
(B) State the date, time, and place for the presentation of the application;
(C) State the date, time, and place of the hearing, if applicable; and
(D) Attempt to determine whether the opposing party will appear to oppose the application (if the court requires a hearing) or whether he or she will submit responsive pleadings before the court rules on the request for emergency orders.
An attorney will be able to handle the proper noticing of the other parent prior to the hearing. If proper notice is not given, there is a very strong chance your emergency request may be denied.
What Happens At the Hearing?
At the time of the hearing, you will be required to prove why the custody change needs to happen. Evidence will need to be presented in regards to this specific situation only.
If the judge enters the emergency order, it will only be binding temporarily until a more thorough, proper hearing can be scheduled and heard. After the hearing, the custody order will be modified with the new temporary terms or the temporary order will be terminated. Evidence can be presented by all parties at this hearing.
Keep in mind that just because a parent can go to court and claim that the child is in danger for one reason or another, the court will not simply issue a temporary order and put the other parent at risk of losing time and more with a child – without sufficient evidence. In fact, if there is any question at all, the judge may even assign a guardian ad litem to the case to work with the children and determine what is going on.
The Need for An Experienced Attorney
When it comes to keeping your child’s best interest in mind, it is important to seek the advice and guidance of an experienced attorney. Whether you are not sure you have enough proof – or even know what proof you need – or if you aren’t sure about the steps you need to take to file the request of order in the first place, an attorney can help.
And if you find yourself on the receiving end of this notice, it is important to have an attorney on your side to uphold your rights, too.
Regardless of the situation between the parents, the California courts are designed to look out for the best interest of the child. If you feel he or she is in danger due to any of the reasons above – and you can prove it – then hire an attorney today and take the next step to protect your kid.
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