When Do You File For Emergency Custody?

For anyone who has a child who is in danger - either emotionally or physically - when they are with a co-parent, this podcast episode of Modern Divorce, will give you the roadmap for when to file with the court for help. Modern Law Family law attorneys Billie Tarascio and Ryan Claridge talk about the different ways such requests with the court can play out, and whether to file in family court or not. 

If you share custody with a parent who you suspect is putting your child at risk - for whatever reason - this is a must-listen episode packed with strategies and information about how you might approach this very sensitive situation and how to avoid the pitfalls that can make your legal position worse.

Transcript

When Do You File For Emergency Custody?

Billie Tarascio: [00:00:00]  Hi. Hey, there it's Billie Tarascio with the modern divorce podcast here, back with another episode with one of the Modern Law attorneys, Ryan Claridge, Ryan, welcome to the show. 

Ryan Claridge: Thanks,

Billie Tarascio: Absolutely. So  Ryan, we're going to talk about emergency custody orders and just in preparing for this show, there's so much we could cover.

It's hard to even know where to start, but let's start with this, like. When can someone file for an emergency  temporary orders petition to get custody of their child. 

Ryan Claridge: [00:01:03] They can file it whenever they want. The question which we'll dive into is when is the right time to file it. And when is it going to work?

So as a parent who is sharing custody with someone else  or about to be sharing custody with someone else, You should look to file these actions when  something very serious is going on that could physically harm your child. This is more than a disagreement with your, your other, with the co-parent.

This is more than  more than any minor thing. It has to be.  Your child has to be in serious danger  danger of things. As a parent, you probably don't want to think about. But dangers of suffering either says serious physical harm immediately  or emotional abuse, so bad that it could scar the child for ever.

Yeah. So the language is you have to establish that if there is not an emergency order, granted. It will cause an imminent risk of serious physical, emotional, or psychological harm. Now the physical is fairly clear. We kind of know what that means. Emotional usually means a child is threatening to commit suicide.

 Billie Tarascio: [00:02:22] And that does happen unfortunately like more often than, than I'd like to even think about. And now that I think about like how many cases we've had with that comes up, it happens a lot. The psychological piece. I don't know that I've ever seen an emergency motion granted on that. 

Ryan Claridge: [00:02:38] Well, I have gotten an emergency motion granted, where there was  there's evidence that in the home, the mother and the other person in the home were just engaging in all kinds of  just verbal and physical altercations.

 Far, as we could tell the child was not being physically hurt, but this was a, you know, a single family home.  These people were not using their inside voices. So a child could definitely hear something is going on and, you know, what's there between emotional and psychological harm. I'm not sure, but I mean, this is something that, you know, we think  No, a child should not be subjected to.

And even though we didn't have any proof that would mean getting in and out an allegation that the child was being physically harmed. They were just in an immigrant environment. That could be so damaging. That's why we brought 

that case. 

Billie Tarascio: [00:03:34] That's a fantastic point. Children witnessing domestic violence or being near domestic violence that isn't necessarily perpetrated at them.

But when they're present, absolutely could qualify under that you to get an emergency order 

Ryan Claridge: [00:03:48] and something  kind of a corollary to that is. It doesn't have to be that the child, unfortunately, there are cases where the children are thinking about hurting themselves  for whatever reason  usually something to do with the custom situation itself.

But if one of the parents is unfortunately in a psychological state where they are expressing that to their, to their child or even threatening to do that, you know, what if they're the only parent there, then that child, you know, if something were to happen to the parents, you know, but then the child is, you know, Unattended  and potentially witnessing something horrific.

So if, I mean, I think everyone, I mean, 95% of our clients would say their opposing party is a narcissist. Right.  But. If you have evidence that someone is truly  bipolar or taking medication for something and they are off the medic medication, or they're having some sort of reaction to a  some sort of mental health trauma is coming to the surface and they are not addressing it.

And you have proof  that is an excellent time to, to file number of motion. 

Billie Tarascio: [00:04:53] That's a great point. The other, the other situation that comes up a lot is with suspected drug use suspected alcohol abuse, or if somebody gets a DUI now, what do you think about those situations? 

So a lot of times, if you're stressing drug use, what a court will do is they will deny an emergency petition, but they will set another hearing.

And at that hearing, they were ordered drug testing. And depending on the type of drug you're alleging, the other party is using that. The idea of idea there is, you know, that 15 day delay is going to allow the other party to be, to come clean. Now, if you have some proof of drug use besides actual ingestion into the body, if you have a parent that's not showing up for an exchange or a parent that, you know, there's lot of cell phones now and FaceTiming, if you're FaceTiming with the co-parent and you see, you know  something out of a Motley crew film in the background happening like a passed out parent and overdosed parents, a child saying, Hey, like my dad isn't responsive right now.

 That would be proof, but just alleging drug use isn't enough.  And is alleging alcohol use is almost never enough unless you have some other kind of  combining  corroborating evidence.  Alcohol is not illegal in the state of Arizona. If, if you're over over 21.  So just drinking usually isn't enough, unless there's something combined with it.

Marijuana is no longer legal in the state of Arizona.  Should you be smoking marijuana around your kid? No more than you shouldn't be smoking a cigarette around your kid. That's probably not enough for an emergency, but if it's causing some other behavior  that is affecting the child, then it could be an emergency.

You brought up a really good point. Sometimes you don't know if your emergency orders going to be granted. And many times we don't know, many times we have gone to try and get an emergency order and we're shocked when we get them. And we're shocked when we don't. So it's, it's hard to know when a case is going to be granted.

I mean, there are those cases that are so horrific that we know it's going to be granted, but most of the time we don't know. But even if it's not granted the fact that you can get a hearing within 15 days to get a contested hearing, to be able to present your evidence, to be able to give the other party an opportunity to be heard is often a good enough reason to file it, even if you're, even if you're not sure if you'll get that. 

Ryan Claridge: [00:07:19] Correct.

Because when you're filing an emergency, you're almost, you have to be filing a permanent modification as well.  So. You don't want to at a permanent modification, hearing that as the underlying question and modify also mentioned these, all these egregious things that you didn't bother getting emergency for, because that, that could be seen as a weakening of your credibility, what you were saying earlier about the probability of an emergency order being granted or not.

I've had cases where I thought I had no chance to get the merchant grant order granted in there granted, and then vice versa as well. And I think part of the reason for that, and we haven't even talked about that yet is when you file an emergency order, it is without notice.  It is also ex parte, which is just a Latin word for saying the other party isn't there.

 So you're asking the court to temporarily take away  parenting time and decision-making for someone's child. And that parent isn't even there to defend themselves. So it's an incredibly, it's an incredibly high burden  that you have to allege. And even though the the family court has the children's best interest, certainly their health and safety, you know, at the core of everything they do, they can't take away someone's parental rights, even temporarily without really, really clear and convincing evidence. 

Billie Tarascio: [00:08:43] That's a good point.  And, and I'm not sure what the actual standard of law or the burden of proof is, you know,  we, we throw out these terms, preponderance of the evidence clear and convincing evidence, and then beyond a reasonable doubt, those are the three different levels of proof, but really it comes down to, does the judge believe that if the judge does not issue this order, removing one parent immediately, the child will be imminently seriously harmed. 

Ryan Claridge: [00:09:13] Correct. And you know, a lot of times we're doing these consultations. If we were to ask the client, what do they really want? They're not going to say I want temporary a hundred percent parenting time and a hundred percent decision-making, they're going to say they want their child to be safe.

Right. So even in order that you file, that does not work.  The other party is going to find out about it and, you know, for lack of a better term, often those parties. Even if they weren't doing anything that rose to the level of an emergency, they will be kind of scared to. And they will act on their best behavior because that underlying permanent petition is coming.

 So often it can, you know, through, what you might call a failed legal effort. You really are accomplishing your objective of making sure your child is safe. 

Billie Tarascio: [00:10:01] I am so glad that you said that because I completely agree with you. This happened this week where, you know, we were there was a client who has made  You know, reports of abuse.

 And those reports didn't end up in a conviction, but they did end up in a, a different arrangement that ensures that abuse is no longer occurring. And, and it's almost always the case that filing something, even if it doesn't work. Will have a positive impact on the environment that your child's in. If that parent's using drugs, they're going to use less drugs.

They're going to be more careful. They're going to be on their best behavior. And sometimes that's what we have to do to hold them accountable. I also think it's a good idea. If you have suspicions, like let's say the other parent is spanking your kid. And you're not okay with it, but that's not illegal.

We can't go get an emergency order. Simply by you emailing. Hey, so-and-so said to me, this is happening and he's really concerned. And I want to know if that's going on and if we can talk about it, even that type of like communication proactively can help make the situation better for your child.

Ryan Claridge: [00:11:14] Absolutely. And then  just a minute or two to talk about  what types of evidence to use and more importantly, what types of evidence not to use, right? Because often times with your former spouse or the parent of your other parent of your child, there's not a free flowing exchange of information back and forth.

So one of the objections you have to overcome is maybe you'd get a video or maybe you get text message or a police report that's from six months ago, you had the police report six months ago, and you did nothing about it for six months going to have to convince the judge why you changed your mind. Right? However, if the police report is six months ago and it was, there was some attempt to conceal it from you  you didn't think it was real. Maybe you thought it was someone trying to stir something up, but if you can show this is when you learned it was real, nevermind that date. I hired an attorney and I filed something the day I found out about this.

And I don't know if it's still going on or not. Right. So just because your evidence might be a little bit old, if it's new to you and you're taking action of it right away  that is helpful.  Another thing is if it was a behavior. If the other parent and you were married in the past and the relationship in the past, and it was behavior that you tolerated when you were living with the person like corporal punishment, like  legal, but maybe excessive drinking or drug use.

And now you're saying it's a problem. And you said nothing about it in your divorce or your original custody action. Again, the judge might have a problem with your credibility. 

Billie Tarascio: [00:12:52] You're absolutely right. And this can be really tricky. Sometimes I'm talking to clients and they're telling me what's going on.

And it's been going on a long time and they've known it's been going on a long time and I'm horrified. And I think we should probably an emergency, but we have to get over the fact that mom didn't think it was an emergency up until her attorney told her that that behavior's not okay. That's hard. Or the flip side, you know, sometimes I have parents who used recreational drugs together.

And now they, you know, something's happened and you want to go file an emergency order and you have to overcome and face the fact that you may have used recreational drug use or something like that in the past as well.  None of it is black and white. All of it is, you know, very specific to the children, to the parties, to the judge.

And to the lawyer whose job it is to make sure to present your facts in the best possible way. Now, one of the questions I want to ask you is who should go get that emergency order? Should it be the party like the client, the paralegal, which sometimes happens or the attorney? 

Ryan Claridge: [00:13:51] Sure. So every case is different.

 In Maricopa County,  the process is you filed the emergency order, and then you go, literally you handed in to the judge's clerk in the hallway, and then the judge will take any emergency that day. They have to. But when they have time, sometimes on their lunch break, sometimes in between cases and a lot of the time they do it just by looking at what you filed and whatever evidence you filed along with it.

 That being said. If everyone's available. I think the best thing to do is to have the attorney and have the client, the moving party there in case the judge has time to actually hold a hearing.  But clients understand the attorney needs to understand that you might be sitting in the hallway for three hours.

Judge may never invite you back and  you might lose, right? So. Filing. It is always putting your foot in the ground. Always letting the court know that this is going on and it will always, if it's true  will always help your underlying petition. But as far as who should go other counties, the attorneys and the clients are required to go.

 I tend to be over. I prefer to be over-prepared than under-prepared, but you know, there are times where even your attorney, even at a firm with six or seven attorneys, no one can get there. The only person that can go as a process server or runner. Right. So  

Billie Tarascio: [00:15:19] Yeah. So they're going to make the decision most likely in Maricopa County, just based on the paperwork and not talk to anyone, but they have the ability to call you back and ask you questions and you want to be available to do that whenever possible.

Now, my next question is when, what you just described is the process of when you go in and you file and you can go into any courthouse, any superior courthouse and whatever judge is on call to hear the emergencies, will hear that case. The other option is you file it directly with your judge. What do you, do you have a preference or does it depend on the case?

I, I think the emergency, I mean, really need to coach your clients think about an emergency in a sense, the same way, like, like the police and the fire department do, right? Like you're calling them because something serious is happening. So like, would you call them, wait to talk to you, your favorite police officer?

You know, if he or she wasn't on duty, probably not. That being said, if you have a prior case history with the judge and the judge is maybe  at least tangentially aware that this could be a problem in your case, especially if perhaps in the, in the original, whatever created the current orders, be it a divorce or establishments.

If you brought up that, Hey, dad is a drug addict and I'm worried about this. Judge said, do some, do some drug testing, show me some clean drug tests and equal time. If you have that same judge and you, and you can kind of have a, I told you, so you may have mistaken moments, then I would say, wait for that, that particular judge, any other time, if it's clearly an emergency.

Yes. Judges are human beings. Yes. They have their own tendencies, but the law here is pretty clear and it really shouldn't matter. It really shouldn't come down to who the judge is. Yeah, 

I totally agree with you. It's very, very case-by-case. You know, if the judge is familiar with the issues and you know, he or she is already sort of concerned about the underlying behavior, but it's iffy for another judge.

Then you would maybe want to go directly to that judge. And, and you would just do that by filing it, marking it as an emergency, and then having the JA or the lawyer call and let them know I've got an emergency sitting in front of you and it's only for you.  It's worked sometimes other times it doesn't and the judge is like, no, Go see the on-call judge.

So this is all a judgment call. Now, the next question that I have for you  is when should a parent file an order of protection instead of an emergency order, and maybe first you should describe, like, what's the difference between filing an order of protection versus an emergency order? 

Ryan Claridge: [00:18:04] Sure. So in order of protection  you cannot file on behalf of someone else.

But you can include someone else as a protected party like your child  in order of protection, that is something that you file. If you believe you, you personally will be subject to like immediate physical sometimes  harassment type harm  that is with a, you can also do it in the superior court.

Do it in city courts as well, but we are more familiar with them in superior courts that I would say has a higher probability for whatever reason of being upheld.  That is something that the client prepares by themselves in a, every spear courthouse has a, usually near the wild library. They have an order protection center.

You go in you type up three or more events, at least three that have happened recently. Hopefully.  And tell the judge what happened and why you need this order to protect you.  You go in that same day  same time you're at the courthouse and you have a hearing usually with a judge right then and there without the other party present.

The problem is we're dealing with family law. You have to describe your relationship to the opposing party and. You may get directed to family court or what might happen is you'll get your protection granted, but they will not include your children on that order. 

Billie Tarascio: [00:19:33] So wait a minute, Ryan. I think, I think we may have gotten a little confused.

So  are you, so are you saying that a parent can go get an order of protection on behalf of the child? If the child is abused, 

Ryan Claridge: [00:19:51] you certainly can you get an arbitration for yourself  or your patient for yourself. If you are also, you know, in a threat of harm and list your child as a protected party, you could also help your minor child get an order of protection against the same abuser.

 But they're, the parent is actually listed as the plaintiff. And the  protected party is going to be the child. So, 

Billie Tarascio: [00:20:18] yeah. So if you have a situation where the child's been subjected to abuse you as the parent have not, you have the ability to go get an order of protection on behalf of your child. Now, the effect of that is a little different than the emergency custody order..

The, whatever the family court orders are. They stay in place except there's this like,  more serious  or that says you can't go anywhere near this protected person or anywhere near these addresses. And that can't, you can't do that. Or if you are the defendant and you've been served or you are subject to criminal penalties.

So at that point you can have really competing orders. You can have a family court order that allows for contact and an order of section that prevents it. 

Ryan Claridge: [00:21:03] Right. So, because that kind of almost necessitates a, a problem and doesn't provide either the moving party with clear relief or the opposing party with what can I do that is or not legal.

That's why I usually try to stay in the family court. What are you, is there a situation where you would not do that? Billie? 

Billie Tarascio: [00:21:25] I mean, there's definitely times when, when I have advised my client to go get an order of protection instead of a  an emergency order. The threshold is different. So you don't have to prove  serious risk of imminent harm in or imminent risk of serious harm.

You don't have to prove that all you have to prove is an incident of domestic violence. If you can show an incident of domestic violence within the last six months, you are eligible to get an order of protection. Now it's possible that the judge or the commissioner will say no, take this to family court.

And you're allowed, like you said, to get an order of protection in a municipal court or a superior court, but the law of order protections means it's just easier to get any, anything that meets the, the domestic violence  definition will allow you to get a real order of protection. The real risk is that if the family court thinks you're playing games with the court system, it's going to hurt you in the long run.

That's the biggest risk. 

Ryan Claridge: [00:22:25] Absolutely. And I made, because it's a high, it's a high threshold for a reason. And it's high threshold really for everybody's benefit. If you, as the moving party can cross that threshold.  Although every family court judge will say, you know, these temporary orders are without prejudice.

We don't have an effect on the permanent orders, not to say that judges are being disingenuous, but you have proven for a moment in time that there was an emergency.  That usually is  quite convincing evidence in the follow-up hearing and in, in the permanent modification.  It really means that whatever events you're alleging that the court is agreeing with you, that they happened.

Billie Tarascio: [00:23:09] That's absolutely true. So we talked a little bit about burdens of proof and to get that order of protection. The court doesn't just have to believe you. They have to believe you by clear and convincing evidence. You need to bring in evidence that shows that your child was a victim of domestic violence on behalf of the perpetrator.

 You know, that, that, that is usually a very effective thing. I had one case where we did both and the emergency in the family court was not granted. The order of protection was, and we were using medical records where the child had disclosed abuse.  Now ultimately he contested the father contested the order protection.

We decided not to do the hearing. We left the order protection go because we had a hearing and family court. But because there was that lack of time where we couldn't get an emergency order, it was denied, but we, we really truly believe the child was in danger. That's why we made that choice. So. All sorts of risk analysis and balancing factors and, and it worked out.

And I think the fact that in that case, we dropped the order objection and said, look, we're going to hear this in front of the family court  negated the risk of having a the family court feel like we were playing games. 

Ryan Claridge: [00:24:22] Sure. And I think to kind of  to kind of wrap this up, if you have what do you think are  emergency circumstances  you should almost always consider filing an emergency.

Now, after talking with your attorney, you, the two of you decide that what is happening is not an emergency. It's not bad news. That means that your child is probably safe. Right? So in that case, you would just go ahead and file your permanent modification.  If you do decide with your attorney, that your child is under, you know, could suffer immediate, serious, physical, or emotional or psychological harm, then you go ahead and file.

If you lose, that means the judge thinks that your child wasn't  subject to those, those evils, which again  you might not believe that judge, but might make you feel a little bit better. If the judge is able to point out some some differences and discrepancies and they feel comfortable that your child is safe.

It goes the other way. And the judge agrees with you. Then you've got a piece of paper that says you get to go get your child and provide for their safety until the court can look into this further, usually within about 15 days. So there's never a bad time to discuss these types of situations with your attorney.

But you have to keep in mind that the goal is not to pull one over on your former spouse or, or the father and mother of your children, but to protect your child. And if you have that mindset, you really cannot go wrong. Whatever the outcome is. 

Billie Tarascio: [00:25:54] Absolutely true. Thank you so much, Ryan. It's been a great episode and I can't wait to have you back.