Overturning an Emergency Custody Order
When a custody order blindsides you unexpectedly, you may need to know how to overturn an emergency custody order. Your options depend on the form the custody order takes and the circumstances involved. You may need to ask the court to modify the order or explain why the current situation places your child at risk.
Every case is different, but challenging a custody order is difficult without a lawyer’s help. The experienced attorneys at The Larson Law Office can advise you on the options available based on your unique situation. We can help you make a plan to fight for custody and guide you through putting that plan into action, providing our support and legal knowledge along the way.
What Is an Emergency Custody Order?
An emergency custody order establishes custody rights over a child. Many emergency orders are temporary and last for only a clearly specified time.
Two types of orders may temporarily affect the custody of your child: temporary custody orders and restraining orders. Additionally, a court may issue a custody order based on having emergency jurisdiction over your child. If you received notice of a change in custody, read the order carefully and ask your lawyer to confirm. Knowing what type of order you are responding to is essential.
Temporary Custody Orders
First, a court may issue a temporary custody order while a larger case is pending. The order lasts until you resolve the underlying case, often a dissolution of marriage. Before a court issues a temporary custody order, it generally schedules a hearing. There, both sides can explain what custody they want and why. Based on what the parties say, the judge can issue temporary orders.
Emergency Jurisdiction-Based Custody Orders
Second, Texas courts can obtain emergency jurisdiction over child custody, even if no previous custody case exists. Courts can issue temporary emergency custody orders if the child is present in the state and has been abandoned or the order is necessary in an emergency. An order is necessary if needed to protect any of the following from mistreatment or abuse:
- The child,
- The child’s sibling, or
- The child’s parent.
An order issued under this provision–part of the Uniform Child Custody Jurisdiction and Enforcement Act–might be permanent. Before the court issues the order, however, it must notify you of the case and allow you to present evidence at a hearing.
Temporary Restraining Orders (TRO) and Protective Orders
Finally, a court may issue a temporary restraining order (TRO) in an emergency. To get a TRO, you explain how the party you wish to restrain presents issues involving flight risk, or disruption to the child.
Or a protective order can be put in place if there is a clear and present danger of committing family violence against you, your child, or a member of your household. Based on that written request and without notifying the restrained party, the judge can issue the TRO or protective order. TROs are called “ex parte” because the restrained party does not necessarily know about the action, and they don’t have a chance to present their side.
While a TRO cannot technically affect your custody rights, it can forbid you from having contact with a child. TRO’s typically last up to two weeks. Protective orders can be made permanent only after a court hearing.
How to Overturn an Emergency Custody Order
Once you know what type of order you have, you can explore how to overturn an emergency custody order in Texas. Notably, you cannot appeal TROs or temporary custody orders to a higher court. However, you can appeal final orders, including an order based on emergency jurisdiction. You can request a modification of temporary and permanent orders as well.
Request a Modification
A court can modify a custody order when the modification is in the child’s best interests and the circumstances have materially and substantially changed since the original order. Having a lawyer to help you request modification is particularly valuable, because proving that there has been a material and substantial change in circumstances can be tricky. This is especially true when not much time has passed, or you already presented evidence in a previous hearing.
Appeal
You can appeal to a higher court if a judge issues a final custody order. Your lawyer will file a Notice of Appeal with your respective court of appeals. In the notice, your lawyer will explain how the judge got the case wrong and what you want the appeals court to do.
Request a Temporary Custody Order
You can request a temporary custody order when one parent requests a modification or appeals, even if that parent is you. A court may issue a temporary custody order if it is in the child’s best interests and there is a material and substantial change of circumstances from the prior order. Some examples of bases for modification are:
- Necessary to protect the child’s health or emotional development,
- The custodial parent has not cared for the child for at least six months, or
- The child is 12 or older and requests the change.
To request temporary custody to protect the child, your attorney will file a written explanation of the facts that present a risk.
Contact Us
Overturning an emergency custody order is legally complicated, and it is often vital to have the support and guidance of an experienced lawyer and their tailored advice.
Contact us today to discuss how we can help you fight for your child.