Emergency Custody

When can you file for emergency custody?

Under the UCCJEA in California, a court has the jurisdiction to grant temporary emergency custody hearing in case a child in California is facing danger. Situations, where you can file for a petition for emergency custody, include:

• Child abandonment
• Threats to the child or the child’s parents or siblings
• Abuse or mistreatment
• Serious harm
• Drug addiction

When reviewing your petition, the courts only consider emergency issues that put the child in immediate danger. If your petition indicates disputes that arise from child support or visitation, then they will not be considered for emergency custody.

California courts’ jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act

(a) Under the UCCJEA, a court has the jurisdiction to emergency child custody determination if the following conditions suffice.

1. It is the home state of the child or was the home state not more than 6 months from the commencement date of the proceeding. If the child is absent from the state, a parent or person representing the child should be living in the state.
2. A court from another state has no jurisdiction under (1) or the court of the home state of the child declines to exercise jurisdiction on the grounds that this state is the more appropriate forum.
3. All courts having jurisdiction under (1) or (2) decline to exercise jurisdiction on grounds that the court of this state is the right forum to determine the emergency custody of the child.
4. Courts of other states would not have jurisdiction under the criteria in paragraph (1), (2) or (3).

(b) In determining emergency custody, subdivision (a) is the exclusive jurisdictional criteria used by courts of this state.

(c) When determining child custody, the physical presence of, and personal jurisdiction over a party or child is not necessary or sufficient criteria.

How long does emergency custody last?

In California, emergency custody will remain effective until an order is obtained from a court having such jurisdiction. Failure to commence such an order will make the determination final and make California the child’s home state. This allows the temporary emergency jurisdiction to convert to permanent jurisdiction.

If parents initiate a custody proceeding in the state having jurisdiction, the California court must issue an order specifying a period in which the person seeking the order can obtain it from the other state. The California court order will then remain effective until the person obtains an order from the other state or the period of the order set by the court expires.

Emergency Custody- ex parte order

Courts in California cannot grant or modify an emergency custody order on an ex parte basis unless you show:

1. Immediate harm to the child

Acts that indicate immediate harm to the child include acts of domestic violence and sexual abuse of the child. The court checks if these acts have been committed recently or are a part of a continuing pattern.

2. Immediate risk the child will be removed for California

Once courts grant or modify an emergency custody order on an ex parte basis they are required to make an order that restrains the person from removing the child from California. This order remains effective pending notice and hearing on the temporary custody motion. The counsel can also request appropriate relief in case they are aware of any facts that suggest there is a risk of abduction by the parent.

An ex parte order for custody must at all times specify the time, day, place and manner of transfer of the child to reduce the risk of exposing the child to domestic violence or conflict and to ensure all family members are safe. In the event the child stays in a confidential location, the order should be designed in a way that will not disclose the location. It must also put into consideration the child’s best interests. Depending on the circumstances of the case, the court may decide to limit custody and visitation to the presence of a third party or suspend it completely.

Other orders

There is always an automatic order that is issued upon commencement of a marital action that prevents both parents from removing a child from California without prior written consent from the other party or court order.

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