What is a Child Protective Custody Order?

A child protection order is an order issued by a judge to stop someone from physically, sexually, or emotionally abusing a child.

Each state has enacted laws regarding child protection orders. Each state’s law explains the procedure on how to obtain a child protection order. This article will give you an overview of how child protective orders work.

Child Orders of Protection: Who Can Request One?

A parent or guardian usually requests an order of protection for their child. A guardian ad litem or court-appointed special advocate appointed for the child can also request a child order of protection. If an investigation reveals that a child is in a dangerous situation, Child Protective Services or a juvenile officer can request an order of protection.

This request is filed with the court and asks for an order preventing the “respondent” from having any contact with the child. An attorney is not needed to file an order of protection. Forms are typically available online or at your local courthouse.

What is the Process of Obtaining a Child Protective Order?

When a child is being physically abused, sexually abused, or emotionally abused, a court can issue an emergency order. A parent can seek an emergency order of protection from their local family court when their child is threatened with abuse.

If a parent believes their child is being abused, they can request a protective order from the circuit clerk at the courthouse. The parent must give the court an explanation of why they need a child protection order. 

Allegations of abuse will be included in the petition. In most cases, the request must be “verified,” which means that the person filing the request swears under oath that the allegations are true. The abuse can be substantiated with documents, such as police reports, medical records, or family services reports.

Most emergency orders of protection are issued “ex parte,” meaning they are issued before the other party can respond.

Upon receiving the petition, the clerk will forward it to a judge for consideration. When the judge reviews the petition, if they determine there is an immediate danger of abuse against the child, the judge will sign an Ex Parte Order and schedule a hearing to determine whether a full order of protection is appropriate.  

The order takes effect immediately. As soon as the judge signs the Ex Parte Order, the clerk will take it to a law enforcement officer and that office will serve the petition and Ex Parte Order on the alleged abuser. 

What are Some Common Restrictions on Child Protection Orders? 

Parents may be subject to several restrictions under an order of protection for their children. Some common restrictions are as follows: 

  • A court order requiring the accused parent to refrain from domestic violence, sexual assault, stalking, molesting, and disturbing the peace of the child.

  •  An order prohibiting the accused parent from entering the child’s home.

  •  A court order barring the accused parent from communicating with the child in any way or through any medium (including social media).

  •  An order establishing a visitation schedule for the non-custodial parent that is in the child’s best interests, including denying visitation if it would endanger the child’s health, development, or safety.

How Soon Will the Child’s Order of Protection Hearing Take Place?

The judge will also schedule a hearing date as part of signing the order. Each party can present evidence and supporting documentation to the judge during the hearing. 

Keep in mind that the Ex Parte Order was based solely on a complaint by one party. During the full custody hearing, the accused will have the opportunity to speak and present evidence. After the temporary custody order has been issued, the full custody hearing is usually scheduled within 15 days. 

Will the Court Appoint a Guardian Ad Litem?

In most states, if there is an allegation of neglect or abuse to a child, the court will appoint a guardian ad litem to represent the child.

A guardian ad litem acts as an investigator, informing the judge of facts and making recommendations to the judge regarding the placement of the child. The guardian ad litem’s primary responsibility is to decide what is best for the child. The guardian ad litem will look into anything the court thinks is essential, like abuse and neglect, drug and alcohol addictions, parental alienation, custody rights, and visitation.

The guardian ad litem is responsible for performing home visits and inspecting the parents’ homes and living situations. A guardian ad litem will interview the parents and speak directly with the child. The investigation will be thorough and include home visits and interviews with teachers, therapists, daycare workers, doctors, grandparents, and other important people in the child’s life.

The guardian ad litem will also examine all discovery documents and the court file. Maintaining open communication and a respectful, positive relationship with your guardian ad litem is crucial as a parent.

What Happens at the Full Child Protection Order Trial?

A temporary child protective custody order may be terminated, changed, or modified at the full trial when all evidence regarding all aspects of the case is considered. Generally, a temporary order does not serve as evidence in a full trial in most states. During the full trial, the party who received the temporary order must resubmit evidence of abuse. In addition, the parent accused of wrongdoing may submit evidence that the issue that led to the temporary order has been resolved.

All states use the best interests of the child standard when determining custody, visitation, and other matters regarding children. Additionally, most states presume that awarding custody to an abusive parent is not in the child’s best interests.

What is a Full Order of Protection?

After a hearing on the petition, the court may grant a full order of protection. All full order of protection hearings must be recorded so a transcript can be prepared. Most states state that a full order of protection is valid for a minimum of 180 days and a maximum of one year. 

If a full order is granted, a copy of the order is given to law enforcement and entered into a statewide computerized system that law enforcement use. 

In most states, the court may grant the following types of restrictions if it finds in favor of the petitioner:

  • A respondent must refrain from domestic violence or sexual assault, stalking, molesting, or disturbing the peace of the victim, including violence against a pet.

  • Respondent is prohibited from entering the victim’s home except as directed by the court.

  • The respondent cannot communicate with the child victim in any way or through any medium except as specifically authorized by the court. 

  • A court will award custody of minor children born or adopted by the parties when the court has jurisdiction over such children, no prior custody order has been issued, and it is in the child’s best interests to do so. Placement of the child in the custody of the non-abusive parent is presumed to serve the child’s best interests.

  • Establish a visitation schedule for the non-custodial parent that is in the child’s best interest. If the court finds visitation would endanger the child’s physical health, impair their emotional development, or otherwise conflict with the child’s best interests or that visitation cannot be arranged in a way that adequately protects the custodial parent from abuse in the future, the court can deny visitation.  

  • Award child support.

  • Award maintenance or alimony when the petitioner and the respondent lawfully are married. 

  • If the respondent is responsible for supporting the child victim or other dependent household members, the respondent should make or continue to make rent or mortgage payments on the residence owned by the child victim.

  • Instruct the respondent to participate in a counseling program approved by the court designed to help stop violent behavior or treat substance abuse.

  • Order the respondent to pay for their treatment and the victim’s treatment costs to the extent they can do so.  

  • An order directing the respondent to pay a reasonable fee for housing and other services provided or being provided to the child victim by a domestic violence shelter.

  • Request that a wireless service provider transfer billing responsibility for and ownership rights to any wireless telephone numbers of any children in the petitioner’s care to the petitioner if the petitioner is not the wireless service account holder.

  • The respondent should be ordered to pay court costs. The respondent must pay the petitioner’s attorney fees, including legal fees.

Can a Full Order of Protection be Renewed?

It may be included in the order that the order of protection will automatically renew after one year if the respondent does not request a hearing at least 30 days before it expires. 

When the original full order of protection does not have a provision for automatic renewal, the petitioner can ask the court to renew the order before the original order runs out. 

A full order of protection can be renewed twice by the court. Renewals can last from six months to one year. Before the order expires, the petitioner must apply at the same court office and attend a hearing. 

It is not necessary for the petitioner to prove that the respondent later committed domestic violence, stalking, or sexual assault to obtain a renewal. 

The application should be made at least two weeks before the full order of protection expires. The full order of protection can be renewed twice for extra times that don’t last longer than a year each.

The original full order of protection may be renewed ex parte if a hearing cannot be held before it expires for good cause. 

Compliance and Enforcement

A compliance review hearing can be used to check if a respondent is following an order to protect a child. Any legal remedy for enforcing a judgment may be used to enforce the terms of a child protection order. If a respondent willfully breaks an order to protect a child, they could get the same punishment as if they were in contempt of court.

Violation of a Child Protection Order 

A violation of the terms and conditions of an ex parte protection order or a full protection order, including domestic violence, stalking, sexual assault, child custody noncompliance, communication initiated by the respondent, entering the petitioner’s home, workplace, or school, or being within a certain distance of the petitioner or the petitioner’s child, is considered a misdemeanor in most states. A repeated violation can result in a felony in a number of states.

What Happens if a Child Protective Order is Violated?

Violations of child protection orders will have different legal consequences depending on the type of order and the state’s laws. Violations of child protection orders can result in both civil and criminal penalties.

Depending on the criminal consequences of the child protection order, the defendant may be charged with a felony, misdemeanor, or in contempt of court. In any of these cases, a conviction can result in imprisonment and heavy fines, regardless of the charge.

In the case of felonies, for example, a fine and a prison sentence of one year or more can be imposed. When a defendant violates a child protection order, the defendant may be charged with a felony. Some states will levy a fine of up to $1,000 and impose a prison sentence if convicted.

Additionally, a person with a child protection order may face legal consequences without violating the order. For example, gun ownership is prohibited for those who have a child protection order issued against them.

Final Thoughts on Emergency Child Custody Orders

This article gives you an overview of child protective custody orders. If you have any questions about the law in your state, you should contact an attorney in your jurisdiction for more information.

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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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