An emergency custody order is a temporary custody order issued when a parent presents evidence to the family court proving that their child is in immediate danger or at risk of being abducted. Emergency custody orders are also commonly known as ex parte orders. Most often, emergency custody orders are issued in cases of child abuse or domestic violence.
What is an Emergency Custody Order?
In California, emergency custody requests are governed by the California Rule of Court 5.151. The California Rule of Court 5.151 is the specific statute of California Title Five that governs emergency custody orders and their requirements. Emergency custody orders are used to address custody issues that cannot be heard on the court’s regular agenda. The rule also limits family courts’ ability to make ex parte orders on limited circumstances that prevent immediate danger or irreparable harm inflicted upon an involved party or child(ren).
Emergency custody orders must be filed promptly. Delayed filings can affect the credibility of a case and reduce the level of urgency. Typically, any modification being made to a child custody arrangement requires a court date. However, arranging and setting a date for child custody cases is a lengthy process that can take several months. If a parent is made aware of a potentially dangerous situation surrounding their child, they can file an emergency custody order.
If you think that your child is in immediate danger, you should first try reasoning with the other parent. Usually, when parents have an amicable co-parenting relationship, it may be possible to persuade them directly. Suppose your co-parent does not agree to all of the temporary and informal custody changes you proposed to resolve the issue. In that case, it may then be necessary to involve a child custody mediator.
A child custody mediator is an expert who will work alongside you and your co-parent to resolve custody disputes through mediation. In other instances, a petition to the court for an emergency custody order may be necessary when parents cannot resolve the conflicts through mediation. California Family Code 3064 allows the court to grant emergency custody orders temporarily without waiting for a court date or hearing.
Reasons for an Emergency Custody Order in California
Due to their nature, emergency custody orders are short-term solutions for what can often be long-term issues. By California law, only situations that endanger the health or welfare of a child qualify for an emergency custody order. These instances include:
- Indications of domestic violence occurring in the child(ren)’s home
- A parent’s arrest for drinking, drug use, or other serious crimes
- Allegations of a parent’s mental or physical incapacitation that endanger the child(ren)
- Allegations of the child(ren) being sexually abused
- Allegations of the child(ren) being physically neglected or abused
- Indication of a sex offender being present inside the child(ren)’s home
The parent filing the petition must have tangible evidence to petition for an emergency custody order based on one of these instances. Physical evidence such as text messages is necessary to prove the emergency of your claim. Filing a petition and verbally describing the situation as an emergency will not justify your claim or its urgency to the courts.
Filing for an Emergency Custody Order:
California Rule 5.151 (e) requires that the parent filing the petition for an emergency custody hearing give the other parent at least one day of advance notice. If proper notice is not given, the court may be forced to deny your request. The emergency hearing will proceed once adequate notice has been given.
The requesting party must prove that the child in question is at risk of immediate danger or harm at the hearing. Further, the requesting party must provide the court with evidence proving that action is necessary to protect the child’s welfare. All evidence presented to the court must be directly related to the emergency because courts will not consider information or evidence irrelevant to non-related issues. At the end of the hearing, the court may choose to:
- Appoint the child a temporary guardian
- Hear evidence related to the emergency
- Issue a temporary order
If the court finds themselves in agreement with the facts presented before them, they may choose to meet some, all, or none of the petition’s original demands.
How to File for Child Custody without an Attorney
California family law prohibits the courts from modifying or granting emergency custody orders without physical evidence proving the emergency or threat to harm. Because of this, emergency custody orders are rarely given. However, parents seeking custody of their child have several other alternatives. Depending on the circumstances of each case, here are a couple of options;
Petition for Custody:
Parents may be able to file a Petition for Custody and Support of Minor Children to request child custody and visitation order changes. However, this petition can only be filed under the following circumstances:
- The child(ren)’s parents are unmarried but have signed a Voluntary Declaration of Paternity and are now requesting a court order for visitation and custody.
- The child(ren)’s parents are married or are in a registered domestic partnership and would like a court order for visitation and custody but are not seeking a divorce or legal separation.
- The child(ren) was legally adopted by unmarried parents who would now like a court order for visitation and custody., or
- A juvenile case has determined that the petitioner and respondent are the child(ren)’s parents, and because of this determination, they would like a court order for visitation and custody.
How to Petition for Custody:
Parents must take the following steps to file a petition for custody of a child without an attorney:
- First, a Petition for Custody and Support of a Minor Child form [FL-210], a summons form [FL-210], and a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act Form [FL-105/GC-120] must be filled out by the petitioning party.
- All completed forms should be made into two copies.
- Once the forms are filed with the court clerk, proper fees must be paid.
- After filing, the responding parent will be served with the documents.
- The individual serving the responding parent cannot be the petitioning parent. Because of this, the final step is to file the Proof of Service of Summons form and provide the completed form to the petitioner for filing.
Parenting Plans:
Parenting Plans are written agreements that outline the timeshare between the parents and other decisions regarding the child. A parenting plan must include information about both legal and physical custody of the child(ren). Legal custody determines which parent will be responsible for making important decisions about the child’s life. Physical custody is information relating to where the child presently lives. For a parenting plan to be a legally binding court order, both parents and a judge must sign it before being filed with the court.
How to write a Parenting Plan:
To write a complete parenting plan, parents must take the following steps:
- Parents must fill out the Stipulation and Order for Custody or Visitation of Children form [FL-355] and Child Custody and Visitation Order Attachment Form [FL-341].
- Both parents must sign the Stipulation and Order for Custody or Visitation of Children form [FL-355]
- Once the forms have been completed and signed, two sets of copies should be made.
- Both the original forms and copies of the signed stipulation should be taken to court and signed by the judge.
- The final step is to file the forms with the court’s clerk.
Contact Pride Legal
If you or a loved one has more questions on how to file for emergency custody orders, we invite you to contact us at Pride Legal for legal counseling or any further inquiries. To protect your rights, hire someone who understands them.
