PUJA SACHDEV | September 5, 2024 | Family Law
Child custody is a sensitive and emotion-laden issue. How does a San Diego family court decide on custody arrangements? The “best interests of the child” is the primary consideration, but what exactly is that? And then there’s the issue of emergency custody, where one parent is seeking an immediate change in child custody arrangements, ostensibly for the “best interests of the child.”
Circumstances That Might Justify an Emergency Child Custody Order
Below is a list of some of the most common circumstances that can justify an emergency child custody order:
- The child is being abused in their current living environment
- The parent with residential custody is preparing to flee the court’s jurisdiction together with the child
- A third party is seeking to abduct the child, and the current custodial parent is not in a position to stop them
- The child is being neglected, resulting in significant risk to their health and safety;
- The child is suffering from domestic violence, either at the hands of a parent or a third party within the household
- The custodial parent is engaging in substance abuse that is putting the child at risk
- The child is living in unsanitary or dangerous conditions (homeless, for example)
- The custodial parent is mentally ill
Any other circumstance that places the child in immediate danger can also be used to justify an ex parte (emergency) hearing.
The Ex Parte Hearing
An ex parte custody hearing is an unusual type of emergency hearing in which only one side attends. After hearing only one side of the story, the judge issues a temporary custody order. Not only does the other parent fail to attend the hearing, the other parent might not even know about the hearing. The judge will issue a temporary custody order before the other parent even knows of the court’s involvement. Law enforcement can then use force (if necessary) to enforce the order.
This may shock you, but if you think about it, you will understand why this has to happen sometimes. For example, imagine one parent trying to move overseas with the child. The parent might not be planning to tell the other parent where their new home is. If the family court schedules a hearing and provides advance notice to the relocating parent, that parent might rush the child to the airport and flee the jurisdiction (and the country) prior to the hearing.
Ex parte hearings and temporary custody orders exist because the “best interest of the child” principle sometimes conflicts with a parent’s right to immediately present their side of the story. The temporary child custody order that a California family court issues in the wake of an ex parte hearing is typically valid for no more than a few days. Those few days give the court time to set up a full adversarial hearing that will issue a more permanent child custody order.
The Full Hearing
The family court has the short time of the validity of the temporary custody order to schedule a full adversarial custody hearing, notify the other parent, hold the hearing, and issue a more permanent custody order. The court will notify the other parent of the place and time of the full hearing. The custodial parent may attend, present evidence and witnesses, and argue their side of the story. Ultimately, the court will issue a permanent custody order.
Either parent can seek to modify even a “permanent” order in response to a significant change in circumstances.
Contact a California Family Lawyer at San Diego Divorce Lawyers, APC Immediately
The issue of child custody is too critical to leave to chance. Moreover, it’s something you have to get right the first time. For these reasons, the assistance of a seasoned San Diego family lawyer is something approaching an absolute necessity.
Contact a local family lawyer at (619) 724-4160, explain your circumstances, and try to schedule an initial consultation with the lawyer as soon as possible.
San Diego Divorce Lawyers, APC
2851 Camino del Rio S #430
San Diego, CA 92108
(619) 866-3756
