What to do if you need emergency child custody

Make sure you understand the steps required to move forward.

mother kissing child sitting at desk

What's Inside

What's Inside

Most child custody arrangements take some time to sort out. If you and your co-parent can’t agree on how to share parenting responsibilities, the court will decide for you. But before a judge orders an arrangement, they do their best to ascertain what may be in a child’s best interest. To do so, they may gather statements from family members and other individuals involved with your child, appoint a guardian ad litem, review evidence and more.

All of that takes time. When you factor in multiple hearing and trial dates, rescheduled courtroom hearings and a judicial system working through hundreds of other cases like yours, it may be weeks or months before you have a resolution.

Depending on the county and state you are in, some sources suggest the process can take more than a year before the judge issues a final order.

In most cases, the courthouse timeline may be inconvenient but doesn’t harm a child. In specific emergencies, though, custody must be established much more quickly—at least temporarily—to shield a child from present or future harm.

When a child is in a situation where there’s a potential for immediate or irreparable harm, a parent or guardian can file an emergency child custody request to keep them safe.

The orders can remove a child from harm’s way by extricating them from a physically, sexually or emotionally abusive or neglectful environment. In other situations, when a child’s parents have died or are unfit to care for the child, orders can permit close relatives or family friends to step in and offer care.

What is emergency child custody?

An emergency child custody order, also known as an ex parte order, is a court-ordered temporary arrangement. It’s issued much more quickly than a typical child custody judgment because the courts employ it to help keep a child from imminent harm. For example, they may give a parent or caregiver permission to extricate a child from a risky environment or limit a parent’s contact to supervised visitation sessions

Get the right lawyer for your child custody case

Schedule a free 15-min call with our team today.

Get started

Emergency child custody orders are only issued when a responsible party can prove that a child is in danger of immediate and irreparable harm. Situations that warrant emergency child custody orders often involve:

  • Emotional or physical neglect: Physical neglect means that a child physically lacks adequate housing, medical care, clothing, food, safety or educational opportunities or is left unsupervised for inappropriate periods. Emotional neglect can mean a child emotionally experiences an unresponsive parent who ignores them, disregards them or invalidates their need for love, warmth and affection.
  • Emotional or physical abuse: Physical abuse is, among other things, when a parent hits, kicks or chokes a child. Emotional abuse is when a parent makes a child feel worthless, alone, unloved or frightened for their safety.
  • Sexual abuse: Child sexual abuse is any sexual activity that involves a minor. It’s considered grounds for the court to immediately intervene and put orders in place protecting the child.
  • Kidnapping: When a parent tries to flee with their child to another state, refuses to provide their co-parent access to their child or withholds information about where the child is, a judge may issue an emergency court order to place the child in safer, more stable circumstances. 
  • Substance abuse: If one or both parents in a household is dealing with severe substance abuse issues to the point that it affects their ability to care for a child.
  • Domestic violence: If one parent hits, assaults (including sexually assaults) or harms the other physically; causes the other to fear immediate physical harm or assault; stalks them (including cyberstalking); engages in behavior to cause the other physical, emotional or psychological harm; or unreasonably interferes with their free will and personal liberty.

Avoid filing for emergency child custody in situations that don’t require it. Emergency child custody orders shouldn’t be relied on to solve scheduling conflicts or disagreements between co-parents. Also don’t use them as a weapon to try to hurt the other parent. If the court discovers you’ve lied, you can be held in contempt, forced to pay a fine and may lose custody of your child.

How to get an emergency child custody order

If you believe a child is in imminent danger and needs the court to step in and protect their well-being, filing an emergency child custody order may be a good decision, though it can be a complex process. 

Laws about what constitutes an “unsafe” situation for a child differ in every state. If you’re confused or unclear about how to proceed, contact an experienced attorney to walk you through the specifics of your case and figure out how to best present it.

Judicial officers may grant emergency child custody very quickly when there’s clear proof of immediate and irreparable harm to the child. However, your case can be delayed or denied if your claim isn’t supported with evidence or doesn’t meet court standards. 

If you decide to pursue an emergency child custody order on your own, you must first collect any physical, visible evidence that suggests your child is actively being harmed or at risk for future harm. This can include but isn’t limited to photographs, medical records, child protective services reports, sworn witness testimony, voicemails, text messages, journal entries and letters.

Second, visit your state’s supreme court website to determine which courthouse in your area has jurisdiction over cases like yours. Then visit that courthouse’s website and download the forms appropriate for your case. Be sure to review any local court rules on the procedure for filing motions such as these.

Fill out your documents, including any affidavit that’s required. Make copies and bring both sets with you to court. A clerk will take, stamp and file your original forms. Then they’ll direct you to bring your second set to whatever courtroom you’re assigned.

There, a judge will review your request and make a decision or take some time to consider your case before granting or denying your order. Depending on the facts of your case, the court may require you to provide the other party notice of your request before issuing any order or require you to explain why notice shouldn’t be provided.

If you make allegations without much evidence, the court may delay your request and appoint a guardian ad litem or experienced child expert to investigate your claims further. Once that person has had a chance to assess the child, their family life and any specific allegations, they return their findings to the judge and recommend how to proceed. The judge will consider their advice, as well as the other evidence provided by the parties, and either approve or deny your request.

What happens after an emergency custody order is granted?

If a court finds evidence that a child is in danger of immediate and irreparable harm, they’ll issue an emergency custody order. Depending on the case specifics, the order may restrict a child’s exposure to their parent or limit parental contact to supervised visitation sessions. In addition, the court may order an offending parent to attend substance abuse treatment, anger management classes, mental health counseling or parenting classes. 

Emergency court orders go into effect immediately and last until the judge can schedule a hearing to give the opposing party (the person accused of child maltreatment) a chance to tell their side of the story.

(Note that emergency orders issued without notice to the other party only remain in effect for 14 days. The court needs to put in writing specific findings why any such order would need to last longer.)

After the court schedules a hearing, you’ll receive documents detailing the emergency child custody order and the hearing date. 

You’re responsible for having that paperwork personally served by someone other than you to the opposing party. It may be helpful to hire a sheriff or professional service to do the job. Custody issues can quickly become contentious, and it’s important to keep yourself and your child as safe as possible.

Your opposing party will have the opportunity to respond to your allegations at the hearing. If child protective services has been involved in your case or has conducted an investigation, they may be called to substantiate or refute your claims. This may require you to subpoena them to court. At the end of the hearing, the judge will decide to extend the temporary emergency order, dismiss it or make it more permanent.

Get the right lawyer for your child custody case

Schedule a free 15-min call with our team today.

Get started

How to seek help with emergency child custody

When you’re concerned about a child’s safety, every second matters. Emergency child custody cases can be notoriously contentious and complex. An experienced attorney can help you sort through what your state law requires and how to proceed efficiently and effectively to keep your child safe and out of harm’s way.

Share with

Bottom line

Our experienced team would love to help you move forward. Schedule a free 15-minute call so we can connect you with an experienced attorney.

Book a free call

Disclaimer: This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.

This page includes links to third party websites. The inclusion of third party websites is not an endorsement of their services.

Share with

More resources