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Emergency Custody Orders: When Can You File?

Document titled "Custody Agreement" on wooden surface with black pen, judge's gavel, and eyeglasses.

An emergency custody order in Arizona temporarily amends custody to permit authorities to move a child in danger to a safer environment within hours. These are rarely-used safety measures that allow the child’s usual custody plan to be temporarily suspended by the courts for exceptional circumstances. Also called a temporary ex parte order, it can take effect the same day that it’s filed.

Understanding how emergency custody orders are filed, when to seek one, and how to file one is important in custody disputes. An experienced family law attorney can counsel you on when such an order is needed, because they are not often granted.

What Does an Emergency Custody Order Do?

When a child’s safety is at risk, an emergency child custody order awards one parent or guardian sole legal and physical custody. It does not replace the court-ordered custody arrangement granted in a divorce but is a temporary solution when a child’s safety is in danger. The custodial adult has full legal decision-making authority over the child for a brief period, until the court can schedule a hearing on the case.

When Can You File for an Emergency Custody Order

Arizona law allows emergency custody orders in situations such as:

  1. Domestic violence in the child’s home
  2. Substance abuse in the child’s presence
  3. Threats to take the child out of state
  4. Refusal to provide medical care to the child

Judges carefully consider the testimony and evidence of the person bringing the emergency request because the court is acting without hearing from both parties. Things like routine parenting disagreements, scheduling conflicts, or dissatisfaction with co-parenting arrangements do not qualify for the criteria set by the court.

The Two-Condition Rule Applies

There is a two-part test for issuing an emergency order without notifying the other parent. Called Rule 48, it states that emergency custody may be granted without notifying the other parent only if one of the following applies:

  1. It is clear that the person making the emergency request will be harmed by giving notice to the other person
  2. Notice to the other parent has been attempted but was unsuccessful

Requirements for Filing

If filing for an emergency order in the Superior Court of the county where the child resides, you must:

  1. File a motion with an affidavit, a proposed form of order, and a notice of hearing on the motion.
  2. Explain in writing the efforts made to notify the other parent or explain why notice should not be required.
  3. The emergency request cannot be filed as a stand-alone, but must be part of another, related family court petition, such as an initial divorce filing, or modification of the custody order.
  4. Include details, evidence, and certification that the order requested complies with the requirement of the rule.
  5. Pay the required filing fee.

What Happens After You File

If the court grants an emergency order, a hearing is typically scheduled within five days (it can vary by location). Once granted, the court documents must be served on the other parent by a constable, law enforcement officer, or private process server.

At the follow-up hearing both parents present their evidence and the judge decides whether to continue, terminate, or modify the order. This provides the non-custodial parent an opportunity to rebut child endangerment claims.

If the request for an emergency order is denied, a request for an expedited hearing may be made.

What Usually Happens

Man in light blue shirt hugging smiling young girl on gray couch in kitchen.

Getting an emergency custody order is reserved for extreme situations. Rather than immediately removing a child from their normal environment, judges often schedule a hearing with both parents to decide if court action is necessary.

Filing an emergency request without evidence can backfire on the petitioner, because judges may require posting a bond to cover costs if a legitimate emergency is not found.

Don’t Hesitate, Get Legal Help

If there’s reason to believe your child is in danger, a family law expert from Webster Family Law can help you navigate an emergency filing and make sense of the court process. They can also explore other options with you, including a petition to amend the custody arrangement. Call for a consultation today.