To request emergency custody of a child, the person seeking the emergency must be able to show that an emergency order is necessary because the child is in harm's way and will likely be irreparably harmed if the emergency is not granted. An emergency motion must have a report of some kind attached, such as a police report or DHS report, or a sworn statement by someone who is an eyewitness to the dangerous situation. In at least one Oklahoma court, the sworn statement cannot be made by the person who is asking for emergency custody -- it must be from someone else.
The Background for Oklahoma's Emergency Child Custody Law
Years ago, the law about emergency orders was unclear. There were no clear standards defining what was an emergency. As a result, people would claim things were emergencies simply because of their own oversight or disagreements. For example, it was common to see separated or divorced parents file emergency motions during Christmas break when they simply could not agree about how to divide the break.
In 2010, Oklahoma passed a law setting standards for emergency custody requests. The motion must show that the child is in surroundings which endanger the safety of the child and that if such conditions continue, the child would likely be subject to irreparable harm. Because emergency motions are presented in a hurry, the statute attempts to set some standards and expectations for reliability. In addition to the requirement that a report or a sworn statement be attached to the motion, the statute also provides that if any of the information in the motion that the judge relied on turns out to be false, the person who asked for emergency custody must pay attorney fees and costs that resulted from their emergency motion.
The Procedure for Emergency Child Custody Requests
The person seeking emergency custody has to create (type out) an emergency motion, attach a report or a sworn statement in support of the motion, and sign a verification attached to the motion asserting that the allegations are true. The person seeking emergency custody must also create a proposed emergency order setting out the relief they are requesting. Most judges require the person seeking emergency custody to call the other side (usually the other parent) to give them notice that they are seeking emergency relief. Emergency custody motions are generally reviewed the same day and the judge will either issue an order granting emergency relief or deny the motion for failure to properly allege an emergency.
What are surroundings endangering the safety of the child, and What is irreparable harm? The answers depend on the facts and circumstances of each case. If domestic violence is taking place in a child's home, it is probably an emergency situation, even if the aggressor is not the other parent. If drug use is taking place in a child's home, again, even if the user is not the other parent, it is probably an emergency situation. However, other situations depend on the age and needs of the child. For example, there is a big difference between a 15 year old being left at home for an hour versus an infant being left alone for an hour.
Even with the law setting standards for emergency custody orders, the procedure for emergency custody varies widely in each county and with each judge. For example, protective order law includes this:
A protective order issued under the Protection from Domestic Abuse Act shall not in any manner affect title to real property, purport to grant to the parties a divorce or otherwise purport to determine the issues between the parties as to child custody, visitation or visitation schedules, child support or division of property or any other like relief obtainable pursuant to Title 43 of the Oklahoma Statutes, except child visitation orders may be temporarily suspended or modified to protect from threats of abuse or physical violence by the defendant or a threat to violate a custody order.
Even though that is the law, the reality is many judges allow people to file protective orders on behalf of their children and use the protective order process to completely disrupt custody and visitation schedules for months. In some cases, the person who is seeking emergency custody will file a motion for emergency custody with the family judge and a petition for a protective order, sometimes with a different judge, and sometimes even in a completely different county!
If an emergency order is granted, judges and attorneys operate by a "rule of thumb" and generally expect to have an adversarial hearing (a mini-trial) on the emergency either 10 days or 14 days after the emergency order was granted. There is no law on this. If DHS has an open investigation, some judges will refuse to permit the full hearing until the DHS investigation is complete. This means that if an emergency order is granted, months could pass before there is ever any kind of meaningful hearing or progress in the case.
What This Means For You
If you believe a child is in harm's way, you have to have evidence to convince the judge that an emergency order is necessary that day. Most judges initially view emergency requests with skepticism, because everyone knows that some people still say things are emergencies that are not. You must be proactive about identifying potential witnesses and finding out if there are any reports, including police reports, DHS reports, news articles or medical records. You should also look for other evidence, including text messages, photos, and social media posts that you may be able to use. If you are successful in getting an emergency order, you cannot take anything for granted. You must continue to prepare for the adversarial hearing, which means organizing your evidence and subpoenaing your witnesses. You should expect that the other parent will deny everything at the hearing, so you will need as much strong, independent proof about the situation as you can get.
If the judge will not permit a full, adversarial hearing until the DHS investigation is complete, you may think that the outcome will depend on what DHS says. This is not necessarily the case. DHS may "unsubstantiate" the allegations, yet the judge may disagree with DHS and keep the emergency in place. DHS may "substantiate" the allegations, but the judge may find that there is no emergency and vacate the emergency order. The work of DHS, like any other investigator, is simply a factor, or part of the evidence for the judge to consider.
Sometimes there are law enforcement investigations taking place at the same time as the emergency custody request, where law enforcement tries to determine if a crime possibly occurred. Just like with DHS, it is possible for someone to be arrested, yet the family law judge determine that there was no emergency. It is just as possible for no arrests to be made and the family law judge to find that the allegations are true and keep the emergency order in effect.
Likewise, if there is a protective order in front of one judge and an emergency custody request in front of another judge, the judges may not treat the situation the same. The protective order judge may rule that the matter is a family law situation and dismiss the protective order, but the protective order judge may also keep the protective order in place indefinitely. The family law judge could dismiss the emergency but the protective order could still be in effect. Or, even if the protective order is dismissed, the family law judge could still sustain the emergency and keep the emergency order in place.
Sometimes emergencies happen and the courthouse is closed. Courts are only open Monday through Friday, from 8:30 to 5 pm. When a parent has good cause to believe that their child is a victim of abuse or neglect or suffering from the effects of domestic violence in the other parent's home, visitation may be withheld. This is a very short-term, temporary solution, meaning that a parent with this kind of information must take legal action as soon as possible, rather than simply withhold visitation indefinitely.
If you have been falsely accused and someone has obtained emergency custody of your child, you need a courtroom trial lawyer who has experience in child custody emergencies, parental rights and criminal defense trials. Our law firm is one of very few law firms who handle both family law and criminal defense cases. You may be facing an emergency child custody case in family court, a protective order in protective order court, and investigations by DHS and law enforcement. The stress is compounded by the reality that your contact with your child will be very limited, and sometimes nonexistent, until you go to court. You cannot take anything for granted. You must prepare with your lawyer for the hearing as if it is a full trial, because the judge has already determined, based on one-sided information, that your child is in a dangerous situation.
Attorney Fees in Protective Orders and Emergency Child Custody Cases
In protective order cases, the law says that if the petitioner prevails and obtains a protective order, the judge can award the petitioner their attorney fees associated with bringing the protective order. It is almost impossible for the defendant to recover attorney fees from the petitioner if the defendant wins. If the defendant wins, the defendant has to show:
- The petition for a protective order was filed frivolously, and
- No victim exists
This is a very high standard, and it is extremely rare to see defendants obtain attorney fees in protective order cases. It is very common to see petitioners obtain attorney fees in protective order cases.
In emergency custody cases, the law says that if any relevant information provided to the court which the court relied on to make its emergency custody decision turns out to be false, the court shall assess against the person who brought the emergency all attorney fees and costs incurred as a result of the emergency custody hearing. Even though this is the law, it is rare to see an award of attorney fees and costs awarded agains the person who brought the emergency custody motion, even when most or all of the allegations in the emergency motion can be disproven.