Puja Sachdev | March 17, 2022 | Child Custody

There could be situations where an extended family member may need to obtain temporary custody of children in their family. If so, they must petition the court. Generally, temporary custody is granted through an emergency hearing.

How to Petition the Court for Temporary Custody for Extended Family Members in San Diego

If a child is in immediate danger, the court may grant temporary custody to another family member. The family member must be at least 18 years of age to petition the court for temporary custody. In addition, they must complete all forms to request an ex parte order.

The court reviews the petition to determine whether the circumstances justify scheduling an emergency hearing. California Rules of Court 5.151 govern emergency orders. Courts may only make ex parte emergency orders under specific circumstances.

A judge must determine that the temporary custody order is necessary to help prevent irreparable harm or immediate danger to the children involved in the matter. Therefore, it is best to petition the court as soon as possible. A judge may question why you waited if a child was in immediate danger.

A San Diego family attorney can complete and file the forms for you and guide you through the process of obtaining a temporary order. Because you must prove that the child is in danger and the parents should not have custody, having an attorney handle the matter is in the child’s best interest.

What Constitutes an Emergency for a Temporary Hearing?

Only situations that endanger the child’s welfare meet the requirements for an emergency hearing. Some situations that could warrant an ex parte hearing include:

  • The parents abandoned the child
  • The child is the victim of sexual abuse or child abuse 
  • A parent suffers from a mental or physical disability that prevents the parent from providing for the child’s care and safety
  • A sex offender is in the child’s home
  • Indications of domestic violence in the home
  • The parents are arrested for drug use, multiple DUIs, or other serious crimes
  • The child is not receiving medical care
  • The child is not attending school because the parent refuses to ensure the child gets to school or prevents the child from attending school

It is not sufficient to allege circumstances that place the child in danger. You need proof of the circumstances that endanger the child. You may need copies of police reports, photographs, sworn witness statements, and other evidence to convince the court to schedule an emergency hearing.

Grandparents, siblings, uncles, aunts, and other extended family members may petition the court for temporary custody of a child. The court’s only priority is to protect the child and ensure the decision is in the child’s best interest. 

Can a Child’s Parent Give Extended Family Members Temporary Custody?

Yes, instead of petitioning the court for an emergency order for temporary custody, the parents could give temporary guardianship to an extended family member. A San Diego custody lawyer can help you file the necessary documents to transfer temporary guardianship to an extended family member.

Parents may transfer temporary custody to another family member if they become ill or they are called to active military duty overseas. In some cases, parents willingly request the court to transfer temporary custody of their child to an extended family member because the parent is unfit or unable to care for the child.

As with an emergency request for temporary custody, the court must be satisfied that giving the extended family member temporary custody is in the child’s best interest.

What Does it Mean to Have Temporary Custody of an Extended Family Member?

When the court grants you temporary custody of a minor, you have the legal rights and responsibilities of a parent. The parent’s legal rights are suspended until the court changes custody. They cannot make any legal decisions for the child as long as the temporary custody order remains in place.

As the child’s legal guardian, you have the right to make all decisions related to the child’s care. Those decisions include, but are not limited to:

  • Where the child lives within the state. You must have court approval to move the child outside of California.
  • What school the child attends
  • The type of medical care the child receives, except a child over 14 years old must consent to surgery unless you have a court order or in an emergency 
  • Where the child attends church, or if the child attends church
  • In what extra-curricular activities the child participates

You can access the child’s school and medical records to care for the child. Additionally, you are responsible for supporting the child financially and taking responsibility for the child’s behavior. The court might require you to obtain specific services for the child, such as counseling.

An attorney can explain your responsibilities as a temporary guardian while helping you petition the court for temporary custody.