Child custody arrangements are often one of the most challenging aspects of the divorce process. Since most courts try and award joint custody during the divorce (as long as they believe both parents are fit to take care of any children), many parents exit their custody battle with an unsatisfactory custody arrangement.
But what happens if you believe your child's other parent may be endangering them? If you're concerned that your child might suffer harm at your ex's hands, you can file for an emergency custody hearing to gain emergency custody of your child.
Alternatively, it's also possible that your ex has filed for an emergency custody hearing against you. Whatever the case, understanding what to expect from the emergency custody hearing process can help you protect your parental rights and pursue your child's best interests.
What Constitutes an Emergency Child Custody Issue?
You can file for an emergency custody or visitation order in California if you believe that doing so is in the “best interests” your child. It's worth noting that courts take emergency custody orders seriously—you should only file for an emergency custody order if you have reason to believe your ex is genuinely unfit as a parent, or that residing with your ex may harm your child in the near future. These can also include issues such as:
- A parent’s arrest for drug use, drunk driving, or another serious crime.
- Signs that the other parent is suffering from a physical or mental illness.
- Signs of domestic violence in the other parent’s household.
- Allegations of sexual abuse.
- Allegations of physical abuse or neglection.
- Indications that there is a sex offender in the other parent’s home.
If you only have general issues with the custody order, you should file for a normal custody order modification, not an emergency order modification. Courts also look down on individuals who file for a custody order modification more out of spite than need, so if your ex files a false emergency custody order again you, it may actually help you retain custody of your child (assuming, of course, that the court determines your ex was in the wrong).
How to File for an Emergency Custody Hearing
In California, you must fill out four separate forms to file for an emergency custody order:
- Form #FL-300, the Order to Show Cause. This order documents why you believe an emergency custody hearing is necessary. If you can, consult with an attorney while filling out these forms. If you have evidence your ex is abusing or neglecting your child, such as photos of bruises or social media posts from your ex, you may want to submit them to the court to justify filing for an emergency order, but consult your attorney first.
- Form #FL-305, the Temporary Orders. This includes your request for temporary emergency custody to protect your child while waiting for the emergency custody hearing.
- Form #FL-310, the Application for Order and Supporting Declaration. This form acts as your official application for the emergency custody order.
- Form #FL-330, the Proof of Service. Once you file an emergency custody order, a third party (often a law enforcement professional or professional process server) will serve your ex with the emergency custody order. Serving the order and receiving Proof of Service allows the order to move forward to a hearing.
If you're filling out the forms by yourself, you'll also need to complete a Declaration in Support of Ex Parte Application to file with the court successfully. If you're working with an attorney, your attorney will submit the forms themselves.
You should make at least four (and preferably six) copies of all these forms. Your child's other parent will need a copy, the California Department of Child Services (DCSS) may require a copy if they are involved in the case, and you always want to keep a couple of extra copies on-hand.
Since Child Protective Services (CPS) is required to investigate reports of abuse or neglect, they frequently become involved in emergency custody orders. CPS may take measures such as investigating a parent's house to determine their living conditions, interviewing parents to learn more about their parenting styles and psychological wellbeing, and interviewing children about their experience living with a parent.
If you worry that your child is in immediate danger from your ex, you should consult your attorney to try and expedite the custody order. Under certain circumstances, the court may forego the need to serve your ex and may immediately remove your child from your ex's custody to protect them.
What to Expect from the Emergency Custody Hearing?
During the custody hearing, both parties present evidence to the court. Common evidence used in emergency custody hearings includes:
- Medical records, which can indicate abuse or neglect;
- Reports from CPS, which can validate concerns about living arrangements or parenting styles;
- Sworn statements from witnesses who can testify as to the veracity or falsehood of the emergency custody order; and
- Statements made by the child or parents that may affect the case.
The judge presiding over the case takes the evidence into account and then administers a temporary order. If you file for emergency custody and the judge rules in your favor, you will gain emergency custody of your child for a set amount of time. Frequently, judges grant temporary emergency custody until a subsequent trial can be held.
While waiting for the subsequent trial, the judge may order a parent to take certain actions, such as attending a drug rehabilitation program or anger management therapy.
In most emergency custody cases, the judge holds a subsequent trial to allow both parties more time to prepare evidence and fight for their parental rights in court. The court then makes a final ruling that the judge determines to be in the child's best interests.
Emergency custody orders can be an invaluable tool for parents to help ensure that their child is safe and sound.