Child custody matters can be incredibly sensitive issues for a variety of reasons. The process can be emotional and exhausting for parents. Circumstances often arise when parents become concerned or unsatisfied about their child’s wellbeing and safety under their current child custody arrangement. Although parents generally have a great deal of power to come up with child custody arrangements, the most important aspect of these decisions must always reflect the child’s best interest. Hence, these matters can be volatile. Sometimes, immediate action is necessary to protect the child. Under these circumstances, the concerned parent should seek an emergency custody order, also known as an ex parte order, so that they can obtain the swift action that their situation demands.
What Is an Emergency Custody Order?
An emergency custody order is the fastest way to take action when a child is in some form of immediate danger. California permits emergency custody orders because of the overwhelming concern for the safety and soundness of every child. Although it is generally advisable to try to reason with the other parent before taking legal action, an emergency custody order can ensure the child’s safety in the most serious circumstances.
Why Seek an Emergency Custody Order?
Seeking an emergency custody order can be challenging, and so it is important for parents to understand why they might seek an emergency custody order. An emergency custody order is the fastest way to take legal action and get the child out of a dangerous situation. However, emergency custody orders are temporary; they are only designed to protect the child until the next hearing, which usually happens within twenty days. Because an emergency custody order is temporary, it can only be a short term solution, but it can be an important step to ensuring the child’s welfare in the face of an immediate threat.
What Are the Requirements for an Emergency Custody Order?
Emergency custody orders are a quick and effective way to safeguard children against imminent harm, however they are difficult to obtain. California courts rarely issue emergency custody orders, granting them only under the most urgent circumstances. The idea is that custody matters are best handled through the traditional, structured legal process, and emergency custody orders should be reserved for, well, emergencies.
This can be a tough pill to swallow for many parents, who feel like everything their child goes through is an emergency, but California courts set a high bar for emergency custody orders. In California, a court will only issue an emergency custody order if there is risk of “immediate harm to the child.” The most obvious example of a risk of immediate harm is where there is a recent (especially long lasting) pattern of
- domestic violence
- child abuse
- sexual abuse
However, California courts have also granted emergency custody orders for other reasons, such as where there is;
- a strong reason to believe a parent will flee with their child, or
- an arrest for a serious crime.
How to Seek an Emergency Custody Order?
Seeking an emergency custody order requires different procedures based on your local jurisdiction, but there are key steps that you will need to take in any part of California.
Complete the required forms
Parents seeking an emergency custody order are required to fill out two mandatory forms;
- Form FL-300 Request for Order
- Form FL-305 Temporary Emergency (Ex Parte) Orders.
A strong petition for an emergency custody order should also include Form MC-030 Declaration. Form MC-030 is used in a lot of legal proceedings to provide additional information to the court. Additional information may contain any relevant details to the case. For instance, a parent filing the form may use it to explain why they believe the emergency custody order is necessary.
Identify and comply with your local court’s rules about emergency custody orders
For example, every case requires that the petitioner provide notice to the opposing party, but the specific notice requirements will differ between jurisdictions. Usually, a local family law facilitator or Self-Help Center can assist individuals with this step.
Prepare and Provide Sufficient Evidence
Sometimes, the court will issue a decision based solely on the filings, but other times the court will hold an emergency hearing in order to decide whether to issue an emergency custody order or not. Remember that the person seeking the emergency custody order bears the ultimate responsibility for providing reasons that the order is necessary under the circumstances. Due to this responsibility, the odds are generally stacked in favor of the opposing party. The petitioner, on the other hand, may wish to use live testimony and any other tool in their tool belt to seek the emergency custody order.
How Will I Know If The Court Granted an Emergency Custody Order?
Collect your papers from the clerk’s office. After the hearing, the clerk will have the documents containing the outcome of your case. If the judge grants an emergency custody order, the terms that you find in these documents will be effective immediately (until the next hearing).
Resources Available to Help Obtain an Emergency Custody Order
There is a wealth of resources available to help obtain an emergency custody order. Where cost is a significant factor, you can do much of the legwork yourself, with the assistance of your local family law facilitator or Self-Help Center, or with a legal aid organization. You can also request a fee waiver to help with the filing fee. However, child custody matters can be incredibly complex, and emergency custody orders are necessarily high stakes. Under circumstances where an emergency custody order can make sense, it is strongly advisable to seek proper representation from a licensed attorney. Contact us at Pride Legal for legal counseling or any further questions.
What Are the Next Steps After Obtaining an Emergency Custody Order?
Remember, emergency custody orders are temporary. It is designed to last only until the next hearing, where the court can issue a “permanent” decision regarding child custody. Therefore, even if the judge grants an emergency custody order and you obtain a specific and immediate custody order, you will still need to seek out a permanent child custody order through the traditional process.
How to Fight a Request for an Emergency Custody Order
Having an emergency custody order filed against you can be a serious threat to your custody rights. Regardless of whether “bad faith” plays a role in their decision to petition for an emergency custody order, it can be both fragile and emotional. It is important to remember that custody battles generally involve parents who are both concerned with the best interests of their child and approaching the situation with both respect and understanding can make all the difference.
In any event, once the other parent petitions for an emergency custody order, two things can happen. First, the judge may issue a decision either way on the basis of the filings alone, without the need for an emergency proceeding. Alternatively, the judge may call for an emergency proceeding so that each party can clarify, explain, or otherwise respond to the filings and the judge’s concerns.
Fighting an Emergency Custody Order
If the child’s other parent is seeking an emergency custody order and the judge calls for an emergency proceeding, you generally have three paths forward.
Mediation
Sometimes parents may choose to mediate and come to an agreement amongst themselves. A parent rarely seeks such a drastic, challenging, and unlikely measure as an emergency custody order unless they are truly concerned for the child’s safety. Perhaps there is a way for you and the other parent to negotiate in order to resolve some or all of these issues before the emergency proceeding so that both parents can walk away feeling better about the situation as they move forward to the traditional hearing.
Seek Formal Representation
In some cases, parents may want to seek formal representation. Child custody matters– especially in the context of a petition for an emergency custody order– can be incredibly complex and involve high stakes. A proper legal representation can make a significant difference in a case. An experienced lawyer can be a grounding, objective force while you are immersed in the emotion and passion of your family’s trouble. Pride Legal has many experienced attorneys that can assist you with this process. Alternatively, parents also have the option of third -party legal aid organizations that can provide low-cost legal services for qualifying individuals.
Self Representation
Lastly, parents always have the option to represent themselves in court. Your local family law facilitator or Self-Help Center can provide free assistance that will help you learn what you need to know to represent yourself in the proceeding.
Contact Pride Legal
If you or a loved one believe you need an emergency custody order– or if you wish to resist a petition for an emergency custody order– we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.