Temporary custody of a minor child may be awarded to a parent or a third party if the parent or guardian with whom the child resides is endangering his well-being. Temporary child custody laws vary somewhat from one state to another, but they are all based on the same principle – the best interests of the child.
Circumstances Justifying Temporary Custody
Temporary child custody is an emergency measure that is usually granted only if you establish that the child is being subjected to mistreatment or abuse, or that such abuse is likely to occur. Situations in which a temporary child custody order could be granted include sexual or physical abuse, abandonment, and substance abuse in the home. In addition, a court may award temporary custody to another party if custody of the child was mistakenly awarded to a convicted sex offender. Some of these circumstances, such as substance abuse or conviction on a sex offense, will not automatically lead to temporary custody being granted – you must show that the child is in actual danger to win custody.
You must establish circumstances warranting that temporary custody be awarded by submitting evidence. Acceptable evidence includes medical reports, photographs of the child's injuries, reports from social workers, police reports and criminal records, affidavits (sworn statements) from witnesses, interviews with the child and psychological evaluations of the child. Evidence generally falls into three categories: physical evidence, documentary evidence and witness testimony. For example, you might submit a police report detailing the custodial parent's arrest for public intoxication and take the stand to state that you witnessed the parent offering the child alcohol. You don't have to establish "guilt beyond a reasonable doubt." Rather, your evidence, taken together with evidence offered by the opposing party, must be sufficient to convince the judge it is more likely than not that an order of temporary custody would be in the child’s best interest.
To win temporary custody, first you petition the family court with jurisdiction over the child's current residence. Your petition must allege specific facts that, if true, establish temporary custody would be in the child's best interest. You don't have to submit evidence with your petition. Before the hearing, you can require the custodial parent and other parties to provide evidence (such as arrest records or medical reports) to support the allegations in your petition. Generally, the court will not issue a temporary custody order until the hearing has concluded; however, you may petition for an order of interim temporary custody that would allow the court to remove the child from the home pending the outcome of the hearing. At the hearing, you’ll present evidence, call witnesses and cross-examine witnesses called by the custodial parent or guardian. If your petition is successful, the court will issue an order transferring custody of the child to you immediately.
The temporary custody order will specify an expiration date. If the court that issued the original custody order is not the same court that issued the temporary custody order (because, for example, emergency petitions are heard by special courts in some states), the temporary custody order will expire when the court that issued the original custody order issues a new custody order, regardless of the expiration date of the temporary custody order. While the temporary custody order is in effect, you may file a petition for permanent custody, which remains in effect until the child turns 18, unless earlier terminated by a court.