A California Family Court, in an ex parte hearing, may issue an order for the removal of a child from a home when it appears that the child is in danger of suffering abuse or neglect.
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Emergency Custody Orders
A court for the county where the child is present may issue ex parte emergency custody orders when it appears to the court that removal is in the best interest of the child; that there are reasonable grounds to believe that one or more of the following conditions exist; and, that the parents or other person exercising custodial control or supervision are unable or unwilling to protect the child.
Issuing Orders
The court issuing the emergency custody orders will do so if:
- The child is in danger of imminent death or serious physical injury or is being sexually abused.
- The parent has repeatedly inflicted or allowed to be inflicted by other than accidental means physical injury or emotional injury. This does not include reasonable and ordinary discipline as long as reasonable and ordinary discipline does not result in abuse or neglect.
- The child is in immediate danger due to the parent’s failure or refusal to provide for the safety or needs of the child.
Placement After Orders
Custody of the child may be placed with a relative taking into account the wishes of the custodial parent and child or any other appropriate person or agency.
The emergency custody orders are in effect for seventy-two hours, exclusive of weekends and holidays, unless there is a temporary removal hearing with oral or other notice to the county attorney and the parent or other person exercising custodial control or supervision of the child, to determine if the child should be held for a longer period. The seventy-two hour period also may be extended or delayed upon the waiver or request of the child’s parent or other person exercising custodial control or supervision.
Within seventy-two hours of the taking of a child into custody without the consent of the child’s parent or other person exercising custodial control or supervision, a petition shall be filed.
In an emergency custody hearing, the judge hears preliminary evidence and addresses emergency situations only. The judge may enter a temporary order granting custody to one parent based on the facts of the emergency.
Hearings
To obtain an emergency hearing, you must file a petition with the court indicating there is an emergency issue that must be resolved. Minor disputes over visitation or child support do not constitute emergencies nor are violations of previously rendered orders; they are handled through contempt proceedings. The most typical situation for a court to issue an emergency custody order is when a child’s welfare or health is endangered. These situations might include child abuse or neglect, the presence of a sex offender in the home, a parent’s substance abuse or a parent’s complete refusal to allow the other parent to see the child.
Evidence
At the hearing, the judge will hear only evidence pertaining to the emergency. The person seeking the emergency order will have to be present. Evidence offered to prove the emergency might include sworn statements, medical records, reports from child protective services, and statements made by the child or parent. Judges are unlikely to grant temporary orders unless there is evidence of abuse. In cases where there is an allegation of abuse but no evidence, the judge may appoint a guardian ad litem or child psychologist to investigate the case and make a recommendation.
Trial
Along with the issuance of a temporary order the judge will set a date for a trial which all parties attend. You must resubmit any evidence of abuse and the parent accused of creating a dangerous situation can also present evidence that the danger either did not exist or has been resolved. The court will use the best interests of the child as the primary factor in determining final custody arrangements; in California, there is a presumption that custody by an abusive or incompetent parent is not in the best interests of the child.
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