Everything You Need to Know About Emergency Child Custody Hearings and Temporary Orders
Also known as an ex parte order, an emergency custody order is a type of temporary order issued when a parent is able to show the family court their child is in immediate danger.
In some situations, a concerned parent may petition the family court for an emergency hearing to request a temporary order regarding custody or visitation rather than wait for the next available hearing date on the court’s regular calendar.
Such hearings are limited to those situations in which there is a true legal emergency justifying the court to abrogate the usual requirements that you give the other party 15 court days’ notice and an opportunity to file a response to your request.
Emergency custody requests in California are governed by California Rule of Court 5.151, providing that family courts may only make ex parte orders under limited circumstances, including, to “help prevent an immediate danger or irreparable harm to a party or to the children involved in the matter…”
If you think something is wrong and putting your child’s welfare in danger, file the emergency custody request right away. If you wait, you could put yourself in a sticky situation right alongside your child. The court will want to know why you waited and may not consider the issue an emergency any longer. If there was truly an emergency, surely you would have acted sooner, right?
Don’t try to do it on your own. You are already under a lot of stress and want to protect your child, but you still need to follow the law. You need legal professionals on your side that can help you stay organized and do what the law dictates.
If you don’t have proper proof of the emergency, you don’t file the proper paperwork, or you withhold your child from the other parent, it can lead to other legal troubles such as dealing with a family court contempt action.
Can I Get Emergency Child Custody Orders in California?
Normally, any kind of modification to an existing custody order and parenting plan requires some complicated legal wrangling in front of a judge while both parties are present.
It takes weeks, often even months, to get a hearing to modify child custody. The difference here is that if a parent genuinely has reason to believe their child is in immediate danger, waiting for weeks or months to have the court hear the matter is simply not an acceptable option.
So what options do you have if you believe your child is in immediate danger?
- Try to reason with your child’s other parent. If you have an amicable co-parenting relationship, you may be able to appeal to their better nature and ask them to agree to a temporary, informal change in the parenting plan until the situation resolves.
Even if your co-parent only agrees to some of the changes you want, it may be best for your child to compromise and work with your co-parent. If you and your co-parent work well with a child custody mediator, consider bringing one in to resolve the issues that you face now.
- Petition the court for an ex parte [emergency] order that grants a temporary change in custody. Family Code 3064 allows parents to seek an emergency change in custody on a temporary basis without waiting on a full hearing under certain circumstances.
Courts do not issue emergency orders often, reserving them for truly urgent situations that cannot wait for the normal hearing process, such as child abuse. It is important to remember that temporary custody orders provide only short-term solutions.
Temporary orders, by their nature, focus on short-term issues and solutions, but they can impact final orders and should be approached with that in mind.
Anything related to your child may feel like an emergency, but only a limited number of situations will qualify as such in the eyes of the family court.
What Constitutes an Emergency Child Custody Issue?
In California, keep in mind that only situations that endanger the welfare or health of a child warrant an emergency custody hearing, including:
- A parent’s arrest for drug use, drunk driving, or another serious crime.
- Allegations that the other parent is suffering from a physical or mental illness that could endanger the child’s safety.
- Indications that there is domestic violence in the other parent’s household.
- Allegations that the child is the victim of sexual abuse.
- Allegations that the child is being physically abused or neglected.
- Indications that there is a sex offender in the other parent’s home.
Just saying that one of these issues exists is not enough to constitute an emergency, however; you must be able to prove it. Live witnesses, photos, text messages, or police reports can serve as evidence of the issue occurring.
What Are The Notice Requirements for an Emergency Custody Hearing?
The parent making the request for emergency orders must notify the other parent at least one day prior to the hearing. Accordingly, California Rule of Court 5.151 (e) provides as follows:
(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.
(2) Declaration regarding notice
An application for emergency orders must be accompanied by a completed declaration regarding notice that includes one of the following statements:
(A) The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 5.165, the applicant informed the opposing party where and when the application would be made;
(B) That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or
(C) That, for reasons specified, the applicant should not be required to inform the opposing party.
Providing the other parent with proper ex parte notice is an integral part of this process. If proper notice is not provided, the court may have no alternative but to deny the emergency request.
How Do I Get Emergency Child Custody Orders in California?
At the hearing, the requesting party has to prove the child involved could be immediately harmed or removed from the state without emergency court orders.
The judge will only allow evidence relevant to the emergency situation and not to peripheral issues.
During an emergency custody hearing, the court may:
- Hear evidence pertaining to the emergency situation (child abuse or neglect, substance abuse in the household, etc.).
- Appoint a guardian ad litem, child psychologist, or minor’s counsel to investigate.
- Issue a temporary order.
If a parent files an ex parte custody application for an emergency custody order and the court decides they are in agreement with the facts outlined in the request, the family court has the discretion to uphold all, some, or none of the requests in the ex parte application.
The emergency order will serve as a temporarily binding legal order that will remain in effect until an evidentiary hearing occurs.
If emergency orders are made, they will stay in effect until the next hearing, which will occur within 20 days. At that point, they can be terminated, modified by temporary orders, or extended. Both parties have the right to present evidence at this hearing.
In cases involving child abuse, the judge may order supervised visitation to the parent who has been accused of abuse or may order the parent to attend parenting classes or anger management classes.
What Do I Need to Prove to Get Emergency Child Custody?
If you think your child is in danger, you’ll need proof. If every parent were able to go into court and claim their child was in danger, the courts would be flooded with cases.
While it seems painful and unfair, you need solid proof that your child is in danger.
Do what you can to keep your child safe while gathering the proof of the danger they are in when with their other parent.
Any irrefutable proof that you can provide will help your case the most.
Can you get pictures of what is occurring? Is there anyone else there that can document what is occurring? Save all communication that you have (via email or text) with your co-parent.
If an incident such as physical abuse occurs, take your child to a doctor and file a police report for further proof.
During the hearing, the judge will hear evidence only pertaining to the emergency issue. Whether the parents currently share joint legal custody or one parent has sole legal custody, only the specific emergency issues will be heard at the emergency hearing.
The petitioning party is responsible for providing sufficient evidence to prove his or her claims. This evidence is based on the alleged danger to the child.
The evidence may include live testimony from someone who witnessed the events, medical records, police reports, reports from child protective services, and other information.
After hearing the applicable evidence, the court may issue a temporary order concerning the petition for emergency relief.
Opposing a Request for Emergency Custody Orders
The fact is that issues related to child custody are so serious and so seriously fraught with emotion, that they can lead someone whom you thought you knew well to do things that you never would have believed.
However, California family law courts won’t modify an existing child custody order or create a new one just because of a parent’s opinion or allegation.
In order to be granted an ex parte or emergency custody order, a parent will need to prove the temporary, emergency order is necessary to safeguard the health or wellbeing of the child.
California family law courts are prohibited from granting or modifying custody on an ex parte basis unless they see actual evidence of imminent harm to the child, or there is a valid risk somebody will remove the child from the state.
A lack of evidence is often the reason ex parte requests are denied in family court.
Unfortunately, it is not uncommon for parents to seek judicial intervention on an emergency basis with little more than an opinion or feeling that their child is being harmed by the other parent.
I Was Just Told I Have an Emergency Child Custody Hearing Tomorrow Morning! What Do I Do?
Ask for a copy of the documents the other parent is filing or has filed, and contact a child custody attorney immediately.
How to Oppose a Request for Emergency Custody Orders in California
The first step to opposing a request for emergency custody orders is to understand what is required to successfully get emergency orders. If the petitioning party has not included necessary facts or evidence in their moving documents and family law declarations, the substance of the allegations is secondary.
California Rule of Court 5.151 (d)(5) provides as follows:
Applications for emergency orders granting or modifying child custody or visitation (parenting time) under Family Code section 3064 must:
(A) Provide a full, detailed description of the most recent incidents showing:
(i) Immediate harm to the child as defined in Family Code section 3064(b); or
(ii) Immediate risk that the child will be removed from the State of California.
(B) Specify the date of each incident described in (A);
(C) Advise the court of the existing custody and visitation (parenting time) arrangements and how they would be changed by the request for emergency orders;
(D) Include a copy of the current custody orders, if they are available. If no orders exist, explain where and with whom the child is currently living; and
(E) Include a completed Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL-105) if the form was not already filed by a party or if the information has changed since it was filed.
With these requirements in mind, opposing a request for emergency custody orders starts with addressing the deficiencies in the request.
If emergency orders were issued, use this time to build your best case.
Custody cases can quickly devolve into he said/she said situations, and it is imperative that as the responding party, you make sure to gather all evidence in support of your position. Often such evidence includes:
- Pictures and videos that lend credence to your ability to provide an environment your child feels safe in and competently can help build a foundation on which to build your body of evidence.
- Any text messages, letters, emails, phone messages, voice mails, or other kinds of correspondence between you and your co-parent that corroborate your stance can be very helpful.
- Eyewitness testimonials of people who know you well as a parent or who witnessed any of the incidents your co-parent references can be very compelling evidence.
Carefully read what your co-parent filed and is accusing you of so that you know what you are up against. Disproving a negative is notoriously difficult, but the better acquainted you are with the accusations against you, the better prepared you will be.
If you have been served with papers that ask the court to issue an order about child custody and visitation arrangements, you should respond if you want to have input into the final decision.
A Skilled Custody Attorney Can Help Get The Best Results for Your Child
If you need to file for an ex parte order or oppose an ex parte application, your first step should be to consult with a family law attorney.
While courts don’t require you to retain a lawyer to help with ex parte application, an experienced attorney can significantly help you in preparing your application or challenging one.
An experienced family law attorney at Talkov Law has the knowledge to help you reach a resolution of your custody and visitation legal issues. Whether reaching a child custody agreement is your goal, or you want a knowledgeable child custody lawyer to fight for you, contact the attorneys at Talkov Law for help.