5 Reasons for Emergency Custody in California

An emergency custody order is a temporary measure issued by the court to safeguard children in critical scenarios by providing a swift legal response to protect their welfare. Reasons for emergency custody in California include various urgent situations where a child’s immediate safety or well-being is at risk. This article will explore the specific circumstances under which such orders are granted and the legal processes involved, ensuring you understand the necessary steps to protect a child’s safety.

Legal Framework for Emergency Custody Orders

The laws that govern the reasons for emergency custody orders in California are a part of the California Family Code, particularly sections related to child custody and domestic violence. They provide the statutory basis for these urgent interventions, ensuring that the legal framework prioritizes the safety and well-being of children in distressing circumstances. Some key provisions include:

1. California Family Code § 3064: This section outlines the requirements for emergency child custody orders, specifying that such orders can only be made when there is an immediate harm to the child or an immediate risk that the child will be removed from the state.
2. California Family Code § 3020: This section emphasizes the importance of protecting the health, safety, and welfare of children, which underpins the court’s decisions regarding emergency custody.
3. California Family Code § 6200-6306: These sections cover the Domestic Violence Prevention Act, which provides guidelines for protecting individuals (including children) from abuse, and can be a basis for seeking emergency custody orders.

Reasons for an Emergency Custody Order

An emergency child custody order is a critical legal tool designed to protect children from immediate danger. By understanding the grounds for these orders and the types of evidence required, parents and guardians can take appropriate action to safeguard their children’s well-being. The specific grounds for granting emergency custody orders in California include:

1. Imminent Risk of Harm – Emergency custody orders in California can be issued under several critical circumstances to protect the welfare of a child. If there is a credible threat that the child will suffer physical or emotional harm, immediate action may be taken. For example if a mother observes her ex-husband repeatedly hitting their child during visits. She can document the injuries with photos and medical reports, and file for an emergency custody order to protect her child from further harm.
   
   However, the harm does not have to be physical. Situations where a parent subjects the child to severe verbal abuse, threats, or psychological manipulation qualify as emotional abuse, warranting urgent intervention. Even if the physical or emotional abuse is not directed at the child, if the child is exposed to an environment where these abuses occur, this exposure can also be grounds for an emergency custody order.
   
2. Abduction Threat – If there is a reasonable belief that one parent might abduct the child, an emergency order may be issued to prevent this. This does not only include, if a parent verbally expresses plans to move out of state or country with the child without the other parent’s consent. A credible threat would also be if one parent learns that the other has purchased one-way plane tickets to another country and has applied for a passport for their child without their knowledge. Fearing abduction, this could be used as a reason to request an emergency child custody order to prevent the move. In addition, if a parent has a history of attempting to take the child out of state without permission, these previous abduction attempts can be considered a credible risk.
   
3. Abuse or Neglect – Evidence of abuse or neglect by a parent or caregiver can justify an emergency custody order. Neglect includes failing to provide basic needs such as food, shelter, clothing, or medical care. Additionally, any form of physical harm or inappropriate sexual behavior directed at the child constitutes physical or sexual abuse, warranting immediate intervention. Furthermore, if a child is living in conditions that are unsafe or unsanitary, these unfit living conditions can also be grounds for an emergency custody order.
   
4. Substance Abuse: A parent having evidence that the other uses drugs in the presence of the child or that a parent is frequently intoxicated while caring for the child, leading to neglectful or dangerous situations are clear threats to a child’s safety and are there for good reasons for an emergency child custody order. For example, if a mother discovers illegal drug paraphernalia within reach of their young child or if she witnesses the father driving under the influence of alcohol with the child in the car,  she would have reason for an emergency custody order to ensure the child’s safety.
   
5. Arrest or Incapacitation of a Parent –  In California, situations where a parent has been arrested or is otherwise incapacitated can be grounds for emergency child custody. These circumstances create an immediate risk to the child’s safety and well-being, justifying swift legal intervention to ensure the child is adequately cared for. For example, if a parent is taken into police custody and held for a significant period, they are physically incapable of caring for the child. The other parent could then file for emergency custody to ensure the child’s safety. Additionally, the nature of the crime, such as DUI or domestic violence, can be used as evidence of potential danger to the child, even if the parent is released quickly.

Aside from arrest, physical or mental incapacitation of a parent can also necessitate emergency child custody orders. Medical emergencies, such as hospitalization due to a severe illness or injury, can render a parent unable to care for the child. Similarly, a severe mental health crisis that compromises the parent’s ability to provide safe care, or a substance overdose, especially in the child’s presence, can justify an emergency custody order. For instance, if a father suffers a severe stroke and is hospitalized in critical condition, the child’s aunt may file for emergency custody to ensure the child has a stable and safe environment during the father’s recovery. 

Evidence Considered by the Court

When seeking an emergency custody order, the concerned parent must provide evidence to support their claim. The burden of proof is higher in emergency situations, requiring clear and convincing evidence to support the claims of immediate harm or risk. When evaluating a request for emergency custody, the court will consider various types of evidence to determine if the criteria for immediate harm or risk are met. The following types of evidence can be critical:

• Sworn Affidavits or Declarations: Detailed written statements from the requesting party and any witnesses, under penalty of perjury, describing the facts and circumstances that justify the emergency order.
• Photographs and Videos: Visual evidence of physical injuries, unsafe living conditions, or other forms of abuse or neglect.
• Medical Records: Documentation from healthcare providers that support claims of physical or emotional harm to the child.
• Police Reports: Reports from law enforcement that document incidents of abuse, neglect, domestic violence, or other threats to the child’s safety.
• Witness Statements: Testimonies from individuals who have firsthand knowledge of the abuse, neglect, or other circumstances justifying the emergency custody order.
• Communication Records: Text messages, emails, voicemails, or social media posts that contain threats or evidence of plans to remove the child from the state.
• Child Protective Services (CPS) Reports: Investigative reports from CPS that substantiate claims of abuse, neglect, or immediate risk to the child.

The court will review this evidence during a prompt hearing to determine whether the emergency order is necessary. If granted, the order will be temporary, and a full hearing will be scheduled to decide on a long-term custody arrangement.

Requesting Emergency Custody for a Child

1. Filing a Request: The concerned parent or guardian must Fill out a Request for orders (Forms FL-300), Ex Parte Temporary Emergency Orders (Form FL-305)) , as well as a written declaration (MC-030 ) explaining the emergency situation, the risks to the child, and the need for immediate custody. These forms will need to be filed with the family court in the county where the child resides along with all relevant details and any supporting evidence. This can often be done in person or electronically, depending on the county’s procedures.
2. Court Hearing: Typically, the court will hold a hearing promptly to review the evidence and determine whether an emergency order is warranted.
3. Temporary Order: If the court finds sufficient cause, it will issue a temporary custody order, which remains in effect until a full hearing can be held to establish a more permanent arrangement.

For detailed information on this process. Check out our post on “ How to file for Emergency Custody of a child in California .”

Emergency child custody orders are vital for protecting children in immediate danger. Understanding the legal framework, grounds for these orders, and the process of filing for emergency custody is essential for ensuring the safety and well-being of children. If you find yourself in a situation requiring urgent legal intervention to protect your child, it is crucial to act swiftly and seek professional assistance. Contact a child custody lawyer today to help you navigate the legal complexities and ensure that your child’s best interests are safeguarded.