How to Overturn an Emergency (Temporary) Child Custody Order

During a messy divorce or child custody battle, parents who haven’t done anything wrong could be accused of abuse. Any claim of abuse should be taken very seriously. 

An ex parte order is only temporary and can be overturned by the court. At the hearing to determine if a full child order of protection should be issued, the court will hear testimony from both sides and review any documents that are offered into evidence. The judge will evaluate the credibility of the parties and witnesses.

After hearing from both sides, the judge will decide whether or not to grant the full order of protection or dismiss the case. The judge will set aside the emergency custody order if it is determined that the abuse claims are untrue.

The only way to overturn the emergency child custody order is to present objective evidence to refute the other party’s abuse allegations. This evidence can be as simple as emails, texts, or recordings. Witness testimony is also powerful.

The following is a list of steps we recommend you consider when attempting to overturn an emergency child custody order.

Step 1: Hire an Experienced Family Law Attorney

The first thing you should consider doing is hiring an experienced family law attorney who can help you navigate the legal system and build a solid defense to overturn the emergency custody order. Remember, time is of the essence. You will be facing a full-blown hearing, usually within 15 days. You need to hire a good family law attorney immediately. 

Your attorney can assist you in gathering evidence and preparing for court. Furthermore, they can represent you in court and protect your rights. It is not recommended that you represent yourself in court. It is challenging to navigate the legal system without the help of an attorney.

You have the best chance of overturning an emergency custody order with the help of a skilled family law attorney who knows how to overturn temporary custody orders.

Step 2: Carefully Review the Petition Asking for the Child Order of Protection

The next thing you should do is carefully review the petition for the order of protection. The petition is typically verified, meaning the person filing it is swearing under oath that the facts are true and accurate.

Go through the petition with a fine tooth comb. Look at every allegation and begin to prepare a defense for each allegation. 

Step 3: Look for Alibi Defenses

If specific dates are listed in the petition, go back through your calendar and see if you have an alibi for any day that abuse is alleged. If you weren’t there that day with the child, that can be a strong defense.

If your review of the data reveals that other people would have been present that day, you should have your attorney contact them. If there are witnesses who can say the abuse didn’t happen, your lawyer will need to talk to them to see if their testimony will help your case.

Step 4: Obtain Medical Testimony to Refute Allegations of Abuse

If there is an allegation of physical abuse, you will need to see if the child was taken to the doctor. If there is an allegation of physical abuse, but the child was never taken to the doctor, this can be evidence that helps you with your defense. Asking why the child was not taken to the doctor can be an effective cross-examination.

You will need to get the medical records if the child was taken to the doctor. Suppose the records do not contain a history of abuse. In that case, you will want to offer the records as evidence and perhaps call the doctor or nurse to come to court and offer testimony.

The counselor’s records should be subpoenaed and reviewed if the child has gone to counseling. Again, if those records do not contain allegations of abuse, you will also want to consider offering those records as evidence. 

Step 5: Presenting Evidence From Neutral Witnesses

Consider having neutral, third-party witnesses testify. Third-party witnesses can include anyone who has observed your interaction with the child. Consider calling school teachers, childcare workers, mutual friends, and family members as witnesses. These witnesses can attest to your character and parenting abilities. These witnesses can provide valuable testimony in court that can help you overturn the emergency custody order.

Step 6: Obtain Police Records

If the police have had any interactions with the child, those reports should be obtained. Frequently, police reports will provide valuable, unbiased evidence of what they observed. The report may also list additional witnesses that could be potential witnesses at trial.

If the police report is helpful, it could also be offered as evidence. If the report concludes there was no abuse, consideration should be given to calling the police as witnesses.

Step 7: Child Protective Services Reports

Like police reports, if Child Protective Services (CPS) was called to investigate an allegation of abuse, their reports should also be obtained. Suppose CPS investigated the allegation and found that the abuse could not be substantiated. In that case, you will want to consider offering the report as evidence and having the investigator testify at your hearing.

Who can Request a Child Order of Protection?

 An order of protection is usually requested by a parent or guardian on behalf of their child. But, Child Protective Services can also file a request for a child’s order of protection if an investigation reveals that a child is in a dangerous situation. The request is filed with the court and will ask for an order to keep the “respondent” from having any contact with the child.

The respondent is usually a family or household member accused of committing domestic violence or sexual assault against the child.

How is a Child Protective Order Obtained?

A court can issue an emergency order to stop someone from physically, sexually, or emotionally abusing a child. When there is a threat of abuse to a child, a parent can seek an emergency order of protection from their local family court.

A parent who thinks their child is being abused will go to the circuit clerk’s office at the courthouse to ask for a protective order. The parent must file a petition with the court to explain why they need a child protection order. 

The petition will contain allegations of abuse. Typically the request must be “verified,” meaning the person filing the request swears under oath that the allegations are true. Documents can be attached, such as police reports, medical records, or family services reports that substantiate the abuse.

Most emergency orders of protection are issued “ex parte.” Ex parte means the order is issued before the other party can respond to the allegations.

The clerk will give the petition to a judge. The judge will review the petition, and if the judge concludes there is an immediate danger of abuse against the child, the judge will sign an Ex Parte Order and schedule a court hearing to see if a full order of protection should be ordered.

The Order goes into effect immediately. After the judge signs the Ex Parte Order, the clerk will have a law enforcement officer serve the alleged abuser with a copy of the Ex Parte Order and the Petition. 

What are Common Protection Order Restrictions?

A parent may be subject to several restrictions once an order of protection is issued for a child. Some common restrictions may include the following: 

  • An order that the accused parent must refrain from domestic violence, sexual assault, stalking, molesting, and disturbing the peace of the child.
  • An order that the accused parent not be allowed to enter the child’s family home.
  • An order that the accused parent cannot communicate with the child in any manner or through any medium, including social media.
  • An order establishing a visitation schedule for the noncustodial parent that is in the child’s best interests, including denying visitation if it would endanger the child’s physical health, emotional development or otherwise conflict with the child’s best interests.

What to Do When Served With a Child Protection Order?

If a child protective order has been served on you, you should immediately identify the court’s date for the full hearing. Most of the time, you will have an emergency child custody hearing in family court within 15 days of the order being given. If you miss this court date, you will be considered in default, and the judge will issue a full order of protection against you.

During this waiting period, you will most likely be ordered to have no contact with your child or only supervised contact until you appear in court. It is not uncommon for the child protection order to say that the accused can’t go to the child’s home or talk to the child until the hearing.

Whatever restrictions are on the order, you must understand that you must obey the order. If you violate the order, the police can be called, and if the police have reasonable suspicion that the order was violated, you will be arrested and taken to jail. 

You need to hire an experienced family law attorney to prepare for a hearing. Preparation for this trial should be the same as preparation for a full custody trial. This hearing must be taken seriously. Remember that the judge has already decided that your child is in a dangerous situation and that abuse has occurred by entering the protective custody order. 

When Will the Hearing on the Child’s Order of Protection be Held?

The judge will also schedule a hearing date as part of signing the order. During the hearing, each party can present the judge with their evidence and supporting documentation. 

Keep in mind that the Ex Parte Order was founded solely on the complaint of one party. The full custody hearing will allow the accused to speak and present evidence. The full custody hearing is usually set within 15 days after the temporary order has been given. 

If you need additional time to get your evidence and witnesses together for the trial, your attorney will need to file a request for a continuance. If the hearing date gets postponed, the temporary order of protection will remain in place, and you will need to continue to make sure you do not violate it.

Attorney Fees in Protective Orders and Emergency Child Custody Cases

Most states allow judges to award the petitioner’s attorney fees if they prevail and obtain a protective order. The law also allows the judge to award attorney fees to the accused. For the accused to win attorney fees, the court must find the following:

  • The protective order petition was filed frivolously, and

  • There was no child abuse.

Most states have laws that say that if the information the court relied on to make its emergency custody decision is false, the court may assess attorney fees against the person who brought the emergency custody order petition. 

Final Thoughts on Emergency Child Custody Orders

If you follow these steps, you will have the best chance of overturning an emergency custody order. The facts of each case are unique, so you should always seek legal advice before taking action.

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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