Emergency Child Custody Orders in Arizona
The Basis for Emergency Child Custody Orders in Arizona
Parents have a constitutionally protected right to the care, custody, and control of their children. A court in a divorce or other family law case may issue orders providing for the amount of time each parent with spend with his or her children. There are circumstances, however, when a court can issue emergency orders restricting or eliminating a parent’s right to spend time with his or her children.
Specifically, the basis for the emergency child custody orders must establish that parenting time with a parent will cause an imminent risk of serious physical, emotional, or psychological harm.
Typically, the allegations are based upon facts that demonstrate a parent has or is likely to abuse a child. Some of the things that constitute “domestic violence” under Arizona law would provide a basis for a court to issue an emergency child custody order in Arizona.
If an emergency child custody order is issued, the judge must determine the least restrictive way to protect the child from harm. This requires a judge to consider whether an order eliminating all contact between the parent and child or an order requiring all parenting time to be supervised.
Filing a Petition for Emergency Custody of a Child
The type of emergency child custody petition you file depends upon whether child custody orders already exist. If they do not, you would need to file a petition for emergency child custody orders to have emergency orders issued by the court. If child custody orders exist, you may file an emergency petition to suspend the other parent’s rights of parenting time under the existing child custody orders.
In either event, you must file a petition containing all of the allegations you believe support the contention that parenting time between a child and a parent places the child in imminent danger of serious harm. That petition must be verified by you. The term “verified” simply means you sign an affidavit under the penalty of perjury that the allegations in the petition are true.
You or your attorney must then determine if the other parent will receive prior notice you are filing the emergency petition or whether they will not receive prior notice. The other parent must receive prior written notice you intend to file an emergency petition unless you allege in your petition or affidavit that (1) giving prior notice to the other parent will place a child in imminent danger of harm and (2) a statement concerning what that harm may be to the child. This is referred to as an Ex Parte Emergency Petition.
All emergency custody petitions must be accompanied by a separate Motion for Temporary Orders, a form of Emergency Child Custody Order for the judge to sign, and an Order to Appear on the motion for temporary orders.
The judge will review all of your documents and will do one of three things. The judge can grant the emergency motion, the judge can deny the emergency motion, or the court can choose to schedule the issues listed in the emergency petition for expedited temporary orders hearing on the issues listed in the emergency petition.
If the court grants the emergency, the court will typically schedule a hearing within five days. Once granted an emergency child custody order, you will have to serve the other parent all of the documents through either a law enforcement officer or private process server. You will then have to appear at the scheduled hearing to present evidence supporting your allegations against the other parent. The judge will hear evidence from both parents and will decide to either continue the order in effect, terminate it completely, or modify it.
It is important to note the trial judge will, in most cases, apply the “best interest of the child” standard in normal circumstances. However, the Arizona Court of Appeals clarified in the case of Hart v. Hart that the court must apply a different standard if the judge issues an order terminating a parents visitation or order that visitation is supervised.
Our attorneys have over 100 years of combined legal experience protecting children in Arizona divorce and child custody cases. We understand how to expedite emergency petitions to obtain emergency custody for our clients. More importantly, we know what to do and the experts to hire to protect children from an abusive parent. Call us at (480)305-8300 if you believe your child is in danger of harm so we can move quickly to protect your child.
Chris Hildebrand wrote this article about an emergency child custody order in Arizona to ensure everyone has access to information about child custody laws in Arizona. Chris is a family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a child custody case should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through.