How to Overturn an Emergency Custody Order | 16 Shocking Ideas
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In rare circumstances when a child’s safety is threatened, the court may grant an emergency custody order. However, these orders are not set in stone – they can easily be overturned. Emergency custody orders are issued to protect a child from imminent danger until a hearing can take place to determine if long-term custody or guardianship is necessary. These orders should not be used as a punishment for bad behavior by either parent. Let’s learn how to overturn an emergency custody order.
Rather, they’re intended as an intervention to prevent further risk of harm or danger to the child. If you have been given an emergency custody order from the court regarding your child, do not panic!
You have rights and can work with your attorney to overturn this order and remove it from your record so that future employers or anyone else won’t find it when they do a background check on you. Read on to learn more about how you can overturn an emergency custodial order and what steps you should take right now if this has happened to you.
What is an Emergency Custody Order?
An emergency custody order is a ruling from the court that a child’s biological parent or guardian does not have proper care for the child and, therefore, must surrender custody of the child to a third party, such as Child Protective Services (CPS).
When a child is involved in domestic violence, substance abuse, or other serious crimes, an emergency custody order is often granted to remove the child from harmful situations and keep them safe. To obtain an emergency custody order, CPS or another appropriate agency must provide evidence that the child could be in danger. If a judge decides that the child should be removed from the current environment, he or she will grant an emergency custody order.
Why Would a Court Grant an Emergency Custody Order?
If a child is in danger, CPS has the authority to remove the child from home and place them in protective custody. Similarly, suppose a child’s biological parent or guardian is incapable of caring for the child due to a mental health issue or substance abuse problem. In that case, they can also remove the child.
However, before either of these entities can remove the child, they must first gain approval from a judge. When CPS or law enforcement removes a child from the family, they ask the judge to grant an emergency custody order.
This order is then used to justify the child’s removal and expedite the legal proceedings. In some cases, the judge may issue an emergency custody order even if the child has not been removed from the home. In these situations, the judge may issue the order based solely on the petitioner’s information submitted to the court.
Things to Consider While Overturn an Emergency Custody Order
If you have been served with an emergency custody order, you will have several steps to take while trying to overturn the order so that you can have custody of your child again. Here are a few things to keep in mind while trying to overturn the order:
Stay calm: It’s important to stay as calm as possible, even if you feel frustrated. You don’t want to say anything that could be used against you later on.
Don’t discuss the case with anyone: This includes family members, your child, and even your attorney. Anything you say could be used as evidence against you and potentially worsen your situation.
Seek the help of an attorney: Even if you don’t have the funds to hire a lawyer at the moment, most courts will appoint a free legal representative for you if you can’t afford one.
Be prepared to fight: This will not be an easy battle, and you will likely have to go back and forth with the opposing side.
How to Overturn an Emergency Custody Order
- Hire a family lawyer ASAP.
- Ensure you are the emergency contact.
- Track and document time spent with your child.
- File for hearing to overturn emergency order.
- Consult with psychologists/ therapists.
- Create your support network.
- Document everything from this point forward.
- Make sure the hearing date is shortly.
- Show that you’re a more suitable caregiver than your ex
- Show that your child is currently safe with you
- Show that your child will be at risk if they’re with your ex
- Prove that there was no real emergency when the judge signed the order
- Prove that any allegations against you are false
- Ask for an extension on the deadline to file your motion to overturn
- File your motion to vacate immediately after
- Negotiate with other parents for custody agreement.
Hire a family lawyer ASAP.
You should contact an attorney as soon as you are served with the emergency custody order. The sooner you retain legal counsel, the better your chances of overturning the order. When hiring an attorney, make sure you do your due diligence. Interview several candidates and ask for references. Be sure to ask for a retainer agreement that outlines the terms of services.
Ensure you are the emergency contact.
Be sure your name is on the emergency contact list for your child. If it is not, you will likely not be contacted when your child is taken to the hospital and may miss important medical information. Additionally, emergency contacts are often the first ones notified by law enforcement if there is an issue with your child.
Track and document time spent with your child.
Be sure to document everything you do with your child. This includes meals, activities, and any time spent together. If you take your child to school or have lunch with them, this should be logged.
This should also be documented if you take your child to doctor appointments. Be sure to track time spent with your child even if you’re not granted custody yet. This will help to show the court that you are actively involved in your child’s life and that there is no reason to give you long-term custody.
File for hearing to overturn emergency order.
If you feel that you have been wrongfully given an emergency order and do not believe it is warranted, file for a hearing to remove the order. To do this, you must provide documentation showing why you should be granted long-term custody.
This can include but is not limited to:
- A list of your dependable and consistent work history.
- A list of your positive relationships with friends, family members and other members of the community.
- A list of your positive and healthy interactions with your child.
- Positive and consistent feedback from your child’s teachers, child care providers and pediatrician.
Consult with psychologists/ therapists.
Depending on the type of emergency order that you were issued, you may be required to undergo therapy or doctor appointments. If this is the case, do not fight this requirement. Instead, use this opportunity to your advantage by finding a psychologist or therapist who can help you build a strong case to overturn the emergency custody order.
Create your support network.
Find support in your friends, family members, neighbors and community members. Let them know what has happened and ask for their help. This can include offering to watch your child for a few hours a week or even at weekends or babysitting for you when you need a night out.
Document everything from this point forward.
Document everything from this point forward. Consider what is discussed if you must attend therapy sessions or doctor appointments. This can include dates and times of appointments, any information given to you by your therapist or doctor, and notes that you take during therapy sessions.
Make sure the hearing date is soon.
In rare cases, an emergency custody hearing will be scheduled for a date far into the future. If this happens, you should petition the court to have the hearing brought up soon. This can be done with a motion to expedite the court hearing.
Show that you’re a more suitable caregiver than your ex
To overturn the emergency custody order, you need to show that you are a more suitable caregiver than your ex. To do this, you will have to provide proof of the following:
- Have a suitable living situation for your child.
- You can provide for your child financially.
- Have a positive relationship with your child.
- Must have a positive and consistent work history.
- You have positive relationships with friends, family members and other members of the community.
- You have positive and healthy interactions with your child.
Show that your child is currently safe with you.
Finally, show that your child is currently safe with you. This is important because one of the primary reasons why courts issue emergency orders is because they feel that the child is not safe with the current caregiver. To do this, you will need to provide the following information:
- Detailed information about your living situation.
- Financial information about how you support your child.
- A list of your positive and consistent interactions with your child.
- Positive and consistent feedback from your child’s teachers, child care providers and pediatrician.
Show that your child will be at risk if they’re with your ex
If your ex has been given custody of your child, you must do everything you can to prove that this is not in the child’s best interests. You must show that your ex cannot protect the child from the dangers that exist in the world.
If your child is under five, the court will presume that they would be at risk if left in their current situation with their current caregivers. In case your child’s current situation is safe, provide the court with the proof.
If your ex-spouse has a drug problem, criminal record, or history of violence, provide evidence. As well, your child is over five years of age. The court will presume they are not at risk in their current environment. However, you must still prove this is the case to the court.
Prove that there was no real emergency when the judge signed the order
Suppose your ex was granted emergency custody due to their claim that they found drugs or alcohol in your home or that your child was harmed while in your care; prove to the court that there wasn’t any danger.
If you have evidence that you explanted the drugs or that your child was not harmed in your custody, present this to the court. Moreover, you have receipts or evidence that you have been attending a drug or alcohol rehabilitation program or have been in therapy to treat a mental illness. It includes this in your motion to overturn the emergency custody order.
If you can provide evidence of your progress towards recovery, the court is less likely to grant your long-term ex-custody.
Prove that any allegations against you are false
If your child’s current caregiver has accused you of wrongdoing and is the reason for the emergency custody order, you must prove that this is false. You must provide evidence if your child has been falsely accused of being abusive, neglectful, or otherwise dangerous.
If your child’s other parent has tried to manipulate the situation to get custody of your child, you must be prepared to fight back. Provide evidence that this other parent has falsified their evidence against you or been cruel to your child. Provide evidence if your child’s other parent has called the police excessively or used their power to manipulate the situation.
Ask for an extension on the deadline to file your motion to overturn
If you want to overturn the emergency custody order, you must file a motion within 10 days of receiving the custody order. If you didn’t receive the order in person, you have 20 days from the date you were served with notice of the order. Ask the court to extend the deadline if you have good cause for why you need more time to file this motion.
If your child is in therapy, you are in therapy, or you have been dealing with special circumstances that have kept you from filing the motion, ask the court to grant you more time.
If you’re worried that your child’s other parent might try to remove them from therapy or change their living situation, ask the court to stay the order until you can file your motion to overturn it.
File your motion to vacate immediately after
After you’ve gathered all of the evidence you need to overturn the emergency custody order, file your motion to overturn the order. Include all evidence supporting your case and why the order should be overturned. If there is a specific reason for needing more time to file the motion, include that in your motion.
Negotiate with another parent for custody agreement.
If the court rules in your favor, you’ll likely regain custody of your child. However, if you are given custody of your child and don’t want this to be permanent. You may be able to negotiate with your ex for a temporary custody agreement.
If you and your ex can agree, write up a custody agreement and present it to the judge. Be sure to include a condition that the agreement is time-limited. So that you can revisit this issue in the future if necessary. If you have been denied emergency custody and your ex has been given guardianship of your child. It’s still possible to overturn this order and regain custody of your child.
You’ll need to file a motion to vacate the custody order and present evidence that you are a better parent than your ex.
You must also present evidence that your child would be at risk if left in their current situation. Provide evidence if your child’s other parent has a criminal record, addiction issues, or a violent history. If your child would be at greater risk if they remained with their current caregiver, provide evidence of this as well. If possible, try to negotiate a custody agreement with your ex.
If you’re facing an emergency custody order, know that you’re not alone and can fight it. The court wants to ensure the child is safe, and so do you. The first step is to follow the advice above and stay calm while you try to overturn the order, and then you can fight back and ensure that your child ends up back in your care.
Keep in mind that the court will always have the child’s best interests in mind, and an emergency custody order is only issued when there is cause to believe the child is in immediate danger. When you can prove that circumstances have changed, you can get the order overturned and get your child back home.
I’m a driven and accomplished law graduate and post-graduate, passionate about sharing my legal expertise via my blog. I hold a Bachelor’s degree in Law from the University of London (UK) and a Master’s in Law from the University of Derby (UK). Both gave me the foundational knowledge and skills to excel in my chosen career path.
Throughout my academic journey, I have gained extensive knowledge in various fields of Law, including Corporate and Business Law in the USA, Criminal Law, International Law, US Copyright law, and most importantly, American Constitutional law.