Puja Sachdev | July 30, 2022 | Family Law
Child custody is one of the most contentious issues that couples fight about in San Diego family courts. California encourages parents to work together to develop a parenting plan and custody arrangement that is best for the entire family. Unfortunately, the court must intervene in some cases to decide on custody matters.
Typically, child custody issues arise during a divorce or separation. Parents file for child custody when they file their divorce papers. The judge may hear the matter a few months after the papers are filed with the court.
However, some situations require emergency child custody hearings. The welfare and safety of the child might be in danger. Examples of reasons the court schedules an emergency child custody hearing include:
- Allegations of child abuse and/or child neglect
- A sex offender lives in the home with the child
- Allegations of domestic violence
- Drug and/or alcohol addiction in the home
- A parent is unfit to care for the child because of a mental condition
- A parent refuses to allow the other parent to see the child
- The possibility of parental kidnapping
You must file a motion with the court asking for an emergency child custody hearing. The motion must include why the matter qualifies for an ex parte emergency order. An ex-parte hearing means the other side is not notified of the hearing.
What Happens During the Emergency Child Custody Hearing?
You have the burden of proving that the child is at immediate risk of harm or that the other parent intends to move the child out of California immediately. Immediate harm to the child includes domestic violence and sexual abuse of the child. The judge decides whether to grant temporary child custody based on the weight of your evidence.
Evidence that can be useful in proving the allegations in the emergency motion includes:
- Medical records
- Eyewitness statements
- Police reports
- Child protective services documents
- Text messages, emails, and other communication
Judges hesitate to grant ex parte emergency child custody orders because the other party has not had a chance to be heard. Therefore, you must ensure that your evidence overwhelmingly proves your child is in immediate danger. The guidance of a child custody lawyer is invaluable at this stage of your case.
What Happens After the Emergency Child Custody Hearing?
If the judge finds that it is in the child’s best interest to award temporary custody, you receive sole temporary custody. However, your custody order is only effective until a full hearing can be heard on the matter. In a few weeks, the court should hold an additional hearing where you and the child’s other parent have a chance to present evidence and make arguments for or against granting sole custody to either parent.
At the full hearing, the judge may continue the temporary custody order pending a final hearing and decision regarding custody. The judge could also rescind or modify the temporary custody order.
Why Is Child Protective Services Involved in My Custody Case?
Because emergency custody cases often involve allegations of abuse or neglect, Child Protective Services (CPS) may become involved in the case. The law requires CPS to investigate all child abuse and neglect allegations. Therefore, CPS may be notified when you file the emergency motion for temporary custody and open an investigation.
How Do Judges Decide Child Custody Cases in California?
The judge may consider any relevant factor applicable to the child’s best interest. While some states provide a signal list of factors that a judge considers, California is different. Several statutes apply to the “best interest of the child” standard for deciding custody cases.
Generally, the judge considers factors related to the child’s safety, health, and welfare. The court reviews allegations of previous or current domestic abuse, sexual abuse, substance abuse, and child neglect. The judge may also consider other factors, such as the child’s relationship with each parent and the parent’s ability and inclination to care for the child and be involved in the child’s life.
In some cases, the judge may consider the child’s preferences. The law allows a judge to consider the child’s wishes when they are of an appropriate age and capacity to reason.
Child custody is a complicated matter. When parents cannot agree on custody arrangements, the judge must determine what custody arrangement is in the child’s best interest. Unfortunately, there is not a checklist that parents can use to decide which parent will be viewed as more fit to have custody.
Experienced child custody attorneys understand the elements and factors of custody cases. They understand what factors judges consider and the evidence necessary to build a strong case. Therefore, the best step a parent can take when protecting their child is to seek legal advice immediately.
Contact Our Family Law Firm in San Diego, CA
San Diego Divorce Lawyers, APC
2851 Camino del Rio S #430
San Diego, CA 92108