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“I Need an Emergency Custody Order!”

| Jan 16, 2021 | Divorce, Family Law, Injuries, Legal Decision Making And Parenting Time |

Introduction

Arizona Family Rule 48 does allow a person to seek emergency intervention from the court to suspend another parent’s child access or legal decision-making (“LDM”) rights. Used properly, the process can shield a child from serious physical injury or psychological harm. It can also save a life. But it is also full of legal risk, misused far too often, unpopular with judges, and just as likely to hurt the applying parent’s case as the alleged abuser. Here are some guideposts to help you through the process … or steer you away!

Make Sure It Is A True Emergency

To secure an emergency child custody order in an Arizona family court, you have to give the court some clear reason to believe you or your child will suffer irreparable injury unless something changes at once. That is a high standard – much higher than people realize. It is also the point where a lot of applications falter right out of the gate: their idea of what constitutes an “emergency” is very different from what the judge expects.

Irreparable injury really does mean irreparable. In other words, the harm must be something from which the child (or applying parent) will never heal. Furthermore, it is not enough to prove “potential” or “possible” harm. There has to be a level of certainty simmering right there – in plain view – where no one can mistake it.

You Can’t Just Ignore The Other Parent

No matter how dire your situation, Family Rule 48(b)(2) demands a second step that is shrugged aside far too often by many parents and lawyers alike. If you want emergency orders, you have to show the judge either (i) you gave fair notice of your intentions to the other parent, or (ii) you have a darn good reason for skipping that step. Don’t skimp on this just because you “don’t want to deal” with them. You will get into a world of trouble, especially if your evidence of an emergency is weak.

A Temporary Decision On Your Motion Does Not End The Discussion

Neither the granting nor denial of your initial application is the last word. A family court judge has three options:

      1. She can deny the motion and take no further action. That doesn’t prevent you from filing a standard (non-emergency) request for help or other legal papers. It just means you don’t get an emergency order.
      2. She can deny the motion but schedule a hearing where both parties can present evidence and have their say.
      3. She can grant the motion. In that instance, the court must schedule a full hearing on the emergency within 10 business days.

If any hearing is set, you will be required to formally serve a copy of your motion and new order on the opposing party. You had also better be ready for that hearing as scheduled. The court will almost certainly reject any request to put it off for another day so you can “gather more evidence” or “find a lawyer” – especially if the emergency order was granted and the other parent’s rights have been suspended.

Last, no matter how your judge decides the emergency motion at a contested hearing, it doesn’t mean she can’t choose an entirely different direction at the final trial on whatever petition is still out there, waiting to be resolved. In other words, if you succeed in preserving your emergency order, you should still behave with modesty and grace, striving to be the best, most respectful co-parent you can be. (Don’t rub the new order in the other parent’s face.) On the other hand, if the court cancels your emergency order, it doesn’t mean you “have no chance” at the final trial. It just means the judge was not convinced that enough of an emergency existed after hearing the other party’s point of view.

Remember Why Rule 48 Is So Strict

Our civil justice system is built on a theory of fair, even-handed play, where each side gets a real chance to outline their arguments, collect witnesses and exhibits, and then present evidence – all before the judge makes a serious decision that could affect their families for years to come. Secret, emergency motions undermine that philosophy. They give the opposing party no chance to be heard before a child is taken away. They look sneaky. And they can make people not want to trust you when the court finally conducts a full hearing with everyone present.

To be blunt, these motions are a little … well … un-American. This is one reason judges don’t like them. It is also why Rule 48 demands such clear proof that irreparable harm will occur unless a judge jumps into the mix. Remember that when you decide whether to run with one!

Talk to an Attorney. (No, Really.)

Seeking the advice of a knowledgeable, experienced attorney is always a good idea anyway. But it is especially important here. Emergency motions can accomplish much good. But a rash, uninformed, or ill-advised application can ruin both your case and reputation for years. They’re the sort of thing an opposing party (or even your judge) will keep bringing up every time you’re back in court to advocate for your child. So be smart … and be careful.