Receiving an emergency custody order can be overwhelming. Understandably, this is a stressful time. The court can issue an emergency custody order (ECO) when the child is in imminent danger of harm. Importantly, this order is temporary and merely the start of the process that ultimately decides child custody. The orders evoke stressful emotions in an already stressful familial situation.
If you have just had an ECO granted, you could be wondering what to do next. The information below explains what to do after an ECO is granted, what to expect at the next hearing, what life under the temporary order looks like, and the potential outcomes.
When is Emergency Custody Necessary?
Emergency custody is a legal process that is only used in certain necessary situations where the child will suffer severe harm while being with the other parent. It is not meant for day-to-day custody disputes or disagreements over parenting styles. Emergency custody is needed only when there is a reasonable, imminent threat to the child’s well-being.
Emergency custody is typically granted for three main reasons
Child Abandonment
A situation can arise wherein a parent has very clearly abandoned the child. This could be done by:
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Physically leaving your child with no provision for their needs
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Not returning for the child after a visit
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Showing a clear intent to abandon parental rights entirely
The situation must indicate that the child could become unsafe due to the lack of proper care.
Child Abuse or Mistreatment
Child abuse or mistreatment refers to situations when the parent physically, emotionally, or sexually abuses or mistreats the child in any way. If a parent does not look after the child’s essential needs like food, shelter, clothing, medical care, and supervision, that is also severe neglect. This type of neglect puts the child’s health and safety in immediate danger. Sound allegations and evidence of this abuse or neglect are solid grounds for emergency custody.
Domestic Violence
Domestic violence situations can put a child in a dangerous situation, even if the child is not the actual target of the violence. A child could suffer harm not just from witnessing domestic violence but also from escalations by adults. If a parent assaults the other parent or anyone in the household, and this assault is dangerous to the safety and well-being of a child, order emergency custody to remove the child from harm’s way.
In most cases, a parent is the first to file for emergency custody. However, a non-parent can request an emergency custody order in extreme cases. This could include:
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Grandparents
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Stepparents
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Other relatives
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Sometimes, others who have a close, established relationship with the child
Moreover, Child Protective Services or related child welfare organizations can seek emergency custody if they are concerned about the child’s safety.
What a California Emergency Custody Order Covers
When a California court gives an emergency custody order, it is based on a finding that the child is in immediate danger to his/her health, safety, or welfare under the California Family Code. This order temporarily protects the child and gives custody until a hearing can occur.
An emergency custody order includes physical custody and legal custody as part of the order. The order will specify who the child lives with (physical custody) and who has the right to make key decisions about the child’s life, like education, medical treatment, and religion (legal custody).
The order can also mention details about access to the child or visitation. The order could:
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Prohibit contact with one parent
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Allow supervised visits
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Limit visitation and impose a visitation schedule
Moreover, the ECO could include contact limits, stipulating how and when parents can communicate with the child and each other. Furthermore, there could also be bans on particular actions or behaviors.
An emergency custody order is not a permanent custody order. An emergency custody order in California usually lasts until the return hearing. Return hearings are generally held between 20 and 25 days, depending on the court schedule and local rules. Usually, the order has details for when the follow-up hearing will be.
The party typically initiates these requests with the FL-300 Request for Order with supporting declarations (FL–305 and FL–310 for temporary emergency orders).
What to Do After Receiving a California Emergency Custody Order
When you get an emergency custody order, you have to take several actions, and so does the other parent.
The Requesting Parent
If you are the requesting parent seeking an ECO for a minor child, you must properly serve the ECO and other relevant documents to the other parent as required under California law. The necessary legal notification must be done via personal service, where the documents are handed to the other parent directly. If attempts to serve the other parent in person are unsuccessful after trying a reasonable number of times, substituted service may be allowed. This means leaving documents with an adult at the other parent’s home and mailing a copy.
Ignoring California law service deadlines could lead to loss of rights, including custody and visitation rights in your case. It is crucial that you not serve these documents yourself. Service must be done by someone over 18 who is not a party to this case, like a process server, friend, or family member.
After serving the other parent, you must submit a Proof of Service form, commonly FL-330, to the court. This document is proof that the other parent has been served. You should verify the hearing's date, time, and place and note it on their calendar. Keep several copies of the ECO, application for the order, proof of service, and other relevant documents for personal use.
The Responding Parent
If you are the responding parent served with an emergency custody order, you should know that this order is effective immediately when it is made. As the responding parent, you must read the order to understand what you can and cannot do. You must pay close attention to the order regarding its terms and conditions. You should give special emphasis to its:
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Custody arrangements
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Visitation terms
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Any other restrictions outlined in the order
Regardless of how you feel about the order, you must comply because failing to do so can lead to serious consequences. You should immediately note the follow-up hearing's date, time, and location. This is the opportunity to present your case to the court.
Moreover, for this hearing, you should start collecting information or documents that you believe are relevant to custody issues.
The deadlines for emergency custody orders are short due to how urgent these matters are. After the order is granted, both parents should immediately take these steps.
The Return Hearing Following an Emergency Custody Order
A return hearing occurs after a judge issues an emergency custody order of a child to determine the temporary custody of that child. Both parents can present their case at this hearing before the court makes further temporary orders concerning the child. This hearing primarily focuses on the judge reviewing the initial emergency order and both parents' input before deciding on temporary orders for custody, visitation, and other issues. This hearing is usually set about 20 to 25 days after the ECO is granted.
At the hearing, the judge will thoroughly review the first application and the order for the ECO. It is not common for evidence to be presented at this first temporary hearing. However, the judge will review everything submitted in writing by both sides. Both parents will have a chance to briefly address the court to make arguments or to respond to statements the other parent made. The most impactful evidence at this stage is presented in written declarations, usually made under penalty of perjury. The declarations are where each parent shall:
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Present their facts to support their position
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Directly address the emergency or threat that caused the ECO to be issued
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Outline what they deem to be in the best interest of the child
Furthermore, supporting documentation, including police reports, medical records, photos, text messages, or school reports, can significantly strengthen the case.
At this emergency hearing, the party who asked for the emergency custody order will usually have the initial burden of demonstrating to the court why the emergency order should continue. After that, the other party presents evidence and argues why the order should not remain in place. During the process, the judge will, most importantly, be focused on the safety and well-being of the child.
In some counties in California, the court may order the parties to attend Family Court Services (FCS) mediation before or on the same date as the hearing. During FCS mediation, a counselor will work with the parents to help them agree on temporary custody. However, if the parents cannot agree, the FCS counselor could deliver a recommendation to the judge for temporary custody and visitation. Both parents should review the local court rules and procedures specific to their county.
You can do the following to help prepare for your case:
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Organize your evidence — Gather all relevant documents, including pictures and communication. Arrange them logically to make a clear and compelling case.
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Prepare a strong declaration — This declaration is your chance to provide your side of the story. Be specific, brief, factual, and focused on your child's best interests. Avoid emotional language and stick to the facts.
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Engage a family law attorney — An attorney can help you understand the legal standards, prepare declarations and evidence, and effectively present your case in court. They can advise you on the procedures in your county and help you deal with the complex nature of California family law.
When you fully prepare for this critical follow-up hearing, you can significantly improve your chances of getting a temporary custody order that best serves your child’s interests. Throughout the entire process, be sure to keep the child in mind. Everything you argue for or provide evidence must highlight the child’s safety, stability, and well-being.
Possible Outcomes of the Follow-Up Hearing
After the follow-up hearing where an ECO was made, the judge will decide on the temporary custody of the child. At this juncture, the judge could issue any of the following orders:
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Dissolve or terminate the ECO — If the judge finds that the initial emergency no longer exists or was not sufficiently proved, then the judge will terminate the ECO. The judge will order custody to go back to the pre-order status. Another temporary arrangement can also be made.
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Confirm or continue the ECO — If the judge believes there is still a need to protect the child, the ECO can be confirmed or continued for another temporary period, usually with the same terms and conditions.
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Modify the ECO — If the judge finds the facts presented at the hearing suggest modifications are in the children’s best interests, he/she could modify the ECO’s terms. Modifications could include changing the physical or legal custody arrangements, the visitation schedule, or the communication terms.
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Stipulation (Agreement Made Order) — If the parties agree on temporary custody of the child, the judge can approve this and order on the agreement terms.
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Order a further evaluation — The judge could order further assessments, like a custody evaluation from a qualified professional, or set another hearing for additional information or allow for live testimony if the judge deems it necessary.
No matter what, the orders given at this hearing are always temporary. These orders are meant to guide the situation until a more permanent custody decision is made through either a final judgment in the case or a modification order. Therefore, this hearing is a step towards a more stable yet temporary arrangement(s) for your child.
Daily Life Under the Emergency Custody Order
Living under a California emergency custody order involves strict compliance and careful navigation of restrictive rules. Whether or not you agree with the order, you must comply. Not adhering to the terms could have significant legal consequences and influence future custody arrangements.
It can be challenging to manage custody exchanges and visitation. For example, if the order allows visitation only with supervision, know the specific rules, location, duration, and who is responsible for the supervision costs. Therefore, keep a report of all exchanges with date, time, and location.
Communication protocols are also covered in the ECO. Be sure to follow any ordered communication methods and the topics you may discuss. Keep communication short and to the point. Keep them focused solely on the child’s welfare. Avoid using communication as an opportunity for conflict. To that end, record-keeping is essential. Record your communication with the other parent, including any incidents, visitation arrival, departure, and issues. It helps if you ever need to change an order, enforce it, or challenge it.
Prioritize your child’s stability while this is going on. Try hard to maintain their routine and shield them from conflicts you have with the other parent. Reassure them and focus on their well-being. You can use conflict avoidance strategies. If disagreements arise, try to de-escalate the situation. If you cannot communicate fairly, use the communication method imposed by your court order and focus on essential information only. Remember that everything you do during this order will be observed and assessed and can influence future court decisions.
Consequences of Not Obeying the Courts’ Orders
If a parent violates the ECO, the other parent can file an enforcement. This can lead to a finding of contempt. This can result in:
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Fines
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Parenting classes
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Changes in custody
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Payment of the other parent’s legal fees
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Jail time for egregious cases
If a parent does not obey a court order, this can hurt them in future custody cases.
In these situations, the compliant parent takes the necessary steps to ensure compliance. If you are the compliant parent:
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Keep a record of every time the other parent failed to follow the ECO, with when and what happened
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Reach out to your lawyer right away to discuss what to do next. You may need to file a motion for enforcement or a motion for contempt. Most importantly, do not take matters into your own hands or do the same.
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You can always call the police. However, it is important to remember that unless the order is quite explicit, the police cannot do much unless there is an immediate risk to the child’s safety. Using controlled court resources is the best way to enforce a custody order.
Find a Family Law Attorney Near Me
Dealing with an emergency custody decision can be important in your family law case. The ECO is an urgent, temporary order to address safety concerns. The subsequent hearing will result in further temporary orders, guiding your current situation. The long-term custody orders must ultimately be in your child’s best interests. The custody process is constantly evolving, and the temporary orders you receive are a step of the process.
For the best outcomes in this process and to ensure your rights and your child’s well-being are protected, talk to an experienced California family law attorney. Talk to our family law experts at San Diego Divorce Attorney, and let us help you navigate the process. Speak to one of our attorneys today at 858-529-5150.
