How to File for Emergency Custody

This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013.

There are 12 references cited in this article, which can be found at the bottom of the page.

This article has been viewed 224,401 times.

If you believe your child is in immediate danger of harm or of being removed from the state, you can seek an order for emergency child custody. The circumstances in which you seek emergency custody undoubtedly are far from ideal. You may be worried, stressed, and/or angry. Fortunately, the process of filing for emergency custody consists of only a few forms.

Preparing to File for Emergency Custody

• What qualifies as a sufficient emergency is generally determined by your state’s statute. Typically, courts won’t remove a child unless the child is in “immediate danger” of harm or about to leave the state. “Immediate harm” often means recent or habitual domestic violence or sexual abuse. [1] X Research source Immediate harm may also be a failure to supervise, as when a parent leaves a young child alone at home while (s)he went to the store. [2] X Research source
• Understand that “emergency custody” is temporary. [3] X Research source If you successfully petition the court for emergency custody, you have not been awarded permanent custody of the child.
• Because time is of the essence, a full, formal hearing will not be held. Sometimes, emergency custody will be granted without any hearing at all. Alternatively, a hearing will be held with only the parent petitioning for emergency custody in attendance. However, the court will hold a full formal hearing at a later date, with both parents present, before awarding permanent custody. [4] X Research source

• “In loco parentis” means that although you are not a legal parent, you have acted as a parent and taken on the responsibilities of parenthood. [6] X Research source

• You will want this information not only for your petition for emergency custody but later, should you seek full custody.

• If costs are a concern, some attorneys provide “unbundled services,” which means that they will provide limited services such as document preparation, legal advice, or coaching for a flat fee. Some places also offer counseling/legal help for free.
• If at any time you are confused about how to proceed, you should seek out a lawyer’s assistance. To find an experienced, local family lawyer, search your yellow pages or perform an internet search for “child custody attorney” and your city or county.
• Nevertheless, if you must file something that day do not wait to talk to a lawyer.

Completing the Forms

• To find the appropriate courthouse, visit your state’s supreme court website. Type “Supreme Court” and then your state into a search engine. Alternately, you can visit this website and then click on your state.
• At your state’s Supreme Court website you should look for links to “Find Your Court” [8] X Research source or “Court locations.”

• Often the local rules are on the court’s website. You should download them and search for “emergency hearing” or “ex parte hearing.” The rules can be lengthy, so searching using CTRL+F will take you to the relevant part.

• The forms go by different names depending on the court. Common names include “Temporary Emergency Court Order,” [10] X Research source “Petition for Emergency Relief,” and “Motion and Affidavit for Emergency Ex Parte Order.” [11] X Research source There are as many different names as there are courts.
• Visit the website for the courthouse where you will file the forms. The forms can often be downloaded from the court’s website. Nevertheless, you should still call and ask the clerk which forms you need to fill out. Although the clerk cannot provide legal advice, she should be able to tell you what forms you need in order to seek emergency custody.
• You may need to fill out multiple forms. Some courts may require that you already have a regular “motion for custody” pending. In these situations, you will have to file the other motion first. For this reason, be sure to tell the clerk what you have filed or haven’t filed.
• If the court clerk cannot help you, or you are confused as to what you need to fill out, seek the help of an attorney.

Read the instructions. Each form should come with instructions. Read the instructions first so that you will know what to fill out. [12] X Research source

• Generally, you will need to provide the following information: your name and address, the other parent’s name and address, the other parent’s attorney’s name and address, as well as the reason why you are seeking the motion.
• Remember to only allege what you can prove with evidence. If you do not have proof that the child is in immediate danger of physical harm, then you should not make that claim in a motion. You could be held in contempt of court and ordered to pay court fees. [13] X Research source

Get assistance. You may seek help with filling out your forms from a self-help center or the family law facilitator at the courthouse. You should call or stop in and ask if anyone is available.

Filing the Forms

Go to the courthouse. You must file the forms in the superior court for the county where your child currently lives. [14] X Research source This is the same courthouse where you got the forms.

• Also attach any other documentation that supports your contention that the child is in immediate harm. Read the form carefully to see if attaching information is allowed.
• Be prepared to pay any filing fees. Call ahead and ask how much the filing fee is and what acceptable methods of payment are.
• Ask when you should return to pick up the order. Sometimes, a judge or hearing officer will decide on emergency custody without needing to hold a hearing. In those situations, a written order granting emergency custody will be given to you.
• Alternately, the judge or hearing officer may schedule a hearing for that day or the following day. [15] X Research source You will need to stop in and ask for the day and time so that you will know when to appear before the judge.

• You must make copies and serve the other parent. Make 2 copies for your records and 1 copy for the other parent.

• Generally, you should be able to serve notice using the sheriff/police. For a small fee, the sheriff/police will serve the other parent and fill out a form that shows service was made.
• Some courts may also allow you to mail notice. If the court allows, and it is easier to send by mail, then you will have to send the forms postage paid, return receipt requested.

Attending the Hearing

• This hearing is not a full trial, which you may have experienced when the court was initially deciding custody.

• Judges are unlikely to grant orders for emergency custody unless there is sufficient evidence of abuse. [17] X Research source Use medical records or statements made by your child to support your argument.

• You should mark your documents “Exh. A, B, C” or “Exh. 1, 2, 3.”
• The judge will likely give a temporary order at the close of the hearing. [18] X Research source This temporary order will be in effect until the final order is issued.

Expert Q&A

Seek emotional support. See if a friend or family member can accompany you as you gather forms and file them. In a trying time, you may find it hard to remember details or understand directions. Having another set of eyes and ears will help you complete everything accurately and file it properly.

Manage expectations. It is critical that you understand that emergency custody is temporary. Do not think that because you have successfully sought emergency custody that you have somehow “won” full custody. The other parent will always have an opportunity for a full, formal hearing where he or she will be able to present evidence.

If you suspect a child is in immediate danger, call your local police department (911 in the US and Canada, 999 in the UK, etc.).

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1. ↑https://codes.findlaw.com/ca/family-code/fam-sect-3064.html?/
2. ↑https://www.mvolaw.com/archives/child-custody-and-visitation-the-grounds-for-emergency-relief/
3. ↑https://www.gumandhillier.com/emergency-child-custody-orders/
4. ↑https://www.gumandhillier.com/emergency-child-custody-orders/
5. ↑https://www.courts.phila.gov/pdf/brochures/dr/custody-brochure.pdf
6. ↑https://www.courts.phila.gov/pdf/brochures/dr/custody-brochure.pdf
7. ↑https://www.lawyers.com/legal-info/family-law/child-custody/emergency-temporary-child-custody.html
8. ↑https://www.courts.state.nh.us/selfhelp/find_your_court.htm
9. ↑https://www.cornwell-law.com/03/emergency-custody-orders-in-ohio/

1. ↑https://www.courts.ca.gov/documents/fl305.pdf
2. ↑https://courts.delaware.gov/forms/download.aspx?id=40998
3. ↑https://www.superiorcourt.maricopa.gov/sscDocs/pdf/drmce11iz.pdf
4. ↑https://www.superiorcourt.maricopa.gov/sscDocs/packets/drmce1z.pdf
5. ↑https://www.lawyers.com/legal-info/family-law/child-custody/emergency-temporary-child-custody.html
6. ↑https://www.lawyers.com/legal-info/family-law/child-custody/emergency-temporary-child-custody.html
7. ↑https://info.legalzoom.com/happens-emergency-custody-hearing-21894.html
8. ↑https://info.legalzoom.com/happens-emergency-custody-hearing-21894.html
9. ↑https://info.legalzoom.com/happens-emergency-custody-hearing-21894.html

About This Article

This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013. This article has been viewed 224,401 times.

To file for emergency custody, start by locating the courthouse in the county where your child currently lives and printing the proper forms from the courthouse's website. As you fill out the paperwork, read the instructions carefully and call the family law facilitator at the courthouse if you need assistance. Once the forms are complete, you'll need to go to the courthouse to file them and any supporting documentation, such as emails or notes that indicate the child is in harm. For advice on what you need to attend the hearing, keep reading!

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