If you believe your child is in danger due to the actions or behavior of the other parent, you may want to prevent that parent from getting access to the child. In situations where a parent is abusive or using controlled substances, child custody lawyers can help you take steps to get an emergency custody order to keep your child safe. On the flip side, falsely accused parents who lose access to their kids may want to know how to overturn an emergency custody order. Here’s how the process works in Texas.
What steps do you need to take to get an emergency custody order?
The first step is to contact a family law attorney to guide you through the process. An attorney can educate you about your options and help you take the next steps. If you’re truly concerned the other parent’s abusive behavior and/or drug or alcohol use is endangering your child, your attorney can file an emergency motion for custody with the court, and you can take the issue before a judge.
The motion must include an affidavit backing up your claims. The affidavit should clearly state what circumstances compelled you to file for emergency custody and ask the court to deny the other parent access to the child until a hearing can be held. It’s critical that the affidavit makes it clear to the judge why—on an emergency basis without a hearing and without the other side having the opportunity to represent themselves—the judge should protect the child.
The judge will decide to issue a temporary restraining order based on the affidavit
Based on what the judge learns from the affidavit, he or she will decide whether the other parent should not have possession of the child until a hearing is held, typically within the next 14 days. The judge is truly supposed to read the affidavit on its face and make a decision.
However, some judges will let the other side talk, which allows that parent to speak their peace and say, “No, that isn’t what happened, it never happened, etc.” but that really is not supposed to be the case.
If after reading the affidavit the judge believes the denial of access to the child is warranted, he or she will grant a temporary restraining order (TRO) denying access. In most cases, judges tend to err on the side of caution and agree to grant TROs because restricting a parent from access for two weeks is a lot better than taking a risk of a child being harmed.
They would rather give make-up time to the parent after the hearing if the affidavit is found to be inaccurate or if there isn’t enough evidence presented to back up the claims. Judges don’t want to put a child in potential danger for a two-week period. Because Texas Judges are elected, it is common knowledge they care about public perception. Meaning, they do not want their failure to protect a child to make the headlines.
As child custody lawyers, if our client is the parent requesting emergency custody orders and the emergency arises during an existing child custody case, we would then be required to notify the other parent’s attorney of the action. If no existing case is going on, notice to the other party’s attorney would not be required prior to obtaining a temporary restraining order. The parent would be served by a process server with the emergency temporary custody order (or TRO) and notified when a hearing regarding the matter will take place.
Hearings for an emergency custody order generally occur within 14 days of a TRO
During the hearing for emergency child custody, the attorney for the parent requesting the emergency custody order must present evidence that substantiates why the other parent shouldn’t have access to the child. If the judge finds the evidence compelling and agrees the other parent should have no access or supervised access, a restraining order will be put in place that details what the judge has decided.
What happens after emergency custody is granted? Emergency custody temporary orders will lay out what supervised access looks like. Depending on the situation, the parent may be allowed access to the child on a limited basis in the presence of a trusted friend or family member (grandparent, aunt, uncle, etc.) or in more restricted cases, in a public place in the presence of a representative of the court or supervised in Family Court Services.
Ready to clean up your act? Parents can earn more possession over time
Parents who are committed to regaining custody and do the work necessary to earn the trust of the courts can step up their possession over time. This may mean getting treatment for substance abuse, getting clean drug screens and living clean for an extended period of time. (It’s going to be a much tougher if not impossible road for parents who have perpetrated family violence.)
For those clients of ours who do the work out of the gate, we may go back to court in two months and ask the judge to allow more possession. This may start with a couple of daytime hours of unsupervised access, then later move on to one overnight a week, two overnights, and eventually expanded standard custody.
However, you’re NOT going to go straight from supervised for two months, then BAM, you have all your rights back to the kids and return to an expanded standard schedule. In Texas, you’re really going to have to work hard toward that. For parties who continue to fail drug screens or something else goes wrong, we find most judges tend to start with about three to six months of supervised access. At the end of the day, if you’ve screwed up as a parent, you’ll have to do the work to get your parental rights back.
How to overturn an emergency custody order
If the other parent falsely accuses you of endangering your child and is threatening to file emergency custody with the court, contact your attorney right away. When you go to the hearing you and your attorney will need to bring all of the evidence you have available to support your claim that the actions or behavior the other parent says occurred actually did not.
While rare, there are some cases where the other parent’s affidavit is so vague or unsubstantiated that it shouldn’t have merited getting a TRO in the first place. In those cases, we could file a motion to vacate the temporary restraining order, and set a hearing quickly, usually within the next two to three days. During that hearing, we then present the evidence that shows the other parent’s affidavit was vague, a lie, etc., and ask the judge to vacate it.
Again, it’s rare that a judge will agree to vacate a TRO because they just granted it a couple of days earlier. Generally, you’re going to have to wait until the hearing for emergency custody orders. In larger Texas counties with both associate and district judges (like Tarrant County), we might also decide to appeal a decision by an associate judge to a district judge if the ruling doesn’t go our way. You don’t have that option in smaller counties (like Wise County) because they don’t have associate judges.
Our Fort Worth family law attorneys are here to help
If you find yourself in a situation where you believe your child’s welfare is at risk—or you have been falsely accused of endangering your child—it’s critical to act quickly. The child custody lawyers at the Sisemore Law Firm in Fort Worth help parents in the Dallas / Fort Worth metroplex and surrounding communities do what’s best for their kids.
To learn more about your options regarding emergency custody, contact our firm to speak with an attorney about next steps. You can reach the Sisemore Law Firm by calling (817) 336-4444 or connect with us online to schedule an appointment.
Photo Source: Canva.com