Knowing how to file for emergency custody of a child in California is critical when a child’s immediate safety is at risk. In these situations, time is of the essence. So, getting the process right is essential for saving precious time. Below is a detailed guide on how to file for emergency custody to give you a clear overview of what you can expect.
1. Assess the Situation
Before initiating the process, ensure that the situation qualifies as an emergency. This includes scenarios like imminent harm to the child, threats of abduction, abuse, neglect, or parental incapacitation. For information on what constitutes grounds for emergency custody, read our article “ 5 Reasons for emergency child custody” . If you are sure the child is in danger, acting quickly in these situations is crucial to minimize the potential harm or disruption to the child’s life.
2. Gather Evidence
The California Family Code, particularly Section 3064, sets stringent requirements for evidence in emergency child custody cases to ensure that such orders are granted only when there is a clear, immediate risk to the child’s safety or well-being. The evidence must be compelling and well-documented, encompassing sworn affidavits, medical records, police reports, and other relevant documentation that clearly demonstrate the need for urgent intervention. Once you are sure the situation is an emergency, collect all necessary evidence to support your claim. This can include:
- 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.
- 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.
- Photographs or videos – Testimonies from individuals who have firsthand knowledge of the abuse, neglect, or other circumstances justifying the emergency custody order.
- 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.
3. Complete the Required Forms
In California, when you want to request emergency custody (also known as ex parte orders), you typically need several forms.. The key forms include:
Form FL-300: Request for Order
- This form is used for all requests for orders for custody and visitation. Form FL-300 provides the court with a comprehensive request for orders, including background information and the specific orders being sought. It sets the stage for what you are requesting in the long term.
Form FL-305: Temporary Emergency (Ex Parte) Orders
- This form is used to ask the court for temporary emergency orders. Form FL-305 focuses specifically on the need for immediate temporary orders to protect the child from harm or remove them from immediate danger. It highlights the urgency and provides the court with the rationale for why immediate action is necessary.
4. Prepare a Declaration
You will also need to include detailed declarations and supporting evidence that will strengthen your case and help the court understand the urgency of the situation. The declaration (Form MC-030) explains the emergency situation, the risks to the child, and the need for immediate custody. Be sure to Include all relevant details and any supporting evidence.
5. File the Forms
File the completed forms with the family court in the county where the child resides. You can file in person or, in some counties, electronically.
6. Notify the Other Parent
In most cases, you are required to give notice to the other parent about the ex parte hearing. However, if providing notice would put the child or yourself at risk, you can request a waiver of notice.
7. Attend the Ex Parte Hearing
The court will schedule a hearing, usually within a day or two of filing. Emergency custody requests are typically heard ex parte, meaning only the requesting party presents evidence initially. Attend the hearing and present your case to the judge. Be prepared to provide clear, concise, and compelling evidence of the emergency. The court will decide based on the presented evidence whether an emergency order is warranted.
8. Temporary Orders and Follow-Up Hearing
In all decisions regarding child custody, including emergency orders, the court’s primary consideration is the best interest of the child. This principle is embedded throughout the California Family Code and guides the court’s evaluation of evidence and determination of custody arrangements. If the judge grants the emergency custody order, it will be temporary. The court will schedule a follow-up hearing to review the situation in more detail and make a longer-term custody decision. Both parents will have the opportunity to present evidence and arguments at this hearing.
How Long Does it Take to get Emergency Custody?
The time it takes to obtain emergency custody in California can vary depending on several factors including how long it takes you to prepare the documentation and evidence needed and submit the forms.
Another factor that can cause a delay is that, while emergency hearings are often held without the other parent present, the requesting party is usually required to provide notice of the hearing to the other parent, unless doing so would put the child or the requesting parent at further risk. This notice period can sometimes affect the scheduling of the hearing.
However, once you have done your part, it can go fairly quickly.
Court Response Time
Courts understand the urgency of emergency custody requests and usually schedule an ex parte hearing quickly, often within 24 to 48 hours of filing. In some cases, the hearing can be held the same day if the situation is deemed extremely urgent.
At the ex parte hearing, the judge will review the evidence presented and make a decision on the spot. If the judge finds sufficient evidence of immediate harm or risk to the child, they will issue a temporary emergency custody order. If granted, the emergency custody order is issued immediately and takes effect as soon as the judge signs it. The order is typically served on the other parent right away.
Follow-Up Hearing
Emergency custody orders are temporary. The court will schedule a full hearing, usually within 20 to 25 days, to review the case in more detail and determine a long-term custody arrangement. Both parents will have the opportunity to present evidence and arguments at this hearing.
The entire process to obtain an emergency custody order can happen very quickly, often within a day or two, due to the urgent nature of such requests. If you are considering seeking emergency custody, it is crucial to act swiftly and ensure that all necessary documentation and evidence are prepared accurately. For the best outcome and guidance through this process, it is highly recommended to consult with a child custody attorney.
An experienced attorney can provide invaluable guidance, help you gather the necessary evidence, complete the required forms accurately, and represent your interests in court. Ensuring the child’s safety and well-being is paramount, and professional legal assistance can make a significant difference in achieving this goal.
When it comes to how to file for emergency custody in California, you will need to follow several critical steps, from assessing the situation and gathering evidence to completing required forms and attending court hearings. The process is designed to protect children from immediate harm and ensure their safety and well-being. By following the outlined steps and seeking the assistance of a child custody attorney, you can handle this challenging process more effectively and provide the necessary protection for the child in urgent situations.