In some situations, grandparents may need to step in and file for emergency custody of their grandchildren. This can occur when the parents are unable or unwilling to properly care for the children.
As a grandparent, you have options when it comes to seeking custody, even on an emergency basis. Here is what you need to know about filing for emergency custody as a grandparent.
When Can a Grandparent File for Emergency Custody?
There are a few scenarios when grandparents may need to quickly file for emergency custody of their grandchildren:
The Parents Are Unfit
If the parents are abusive, neglectful, struggling with addiction/substance abuse, mentally unstable, incarcerated, or otherwise unfit, the children may be in danger. As a grandparent, you can file for emergency custody when the children’s basic needs are not being met. This can provide immediate protection while long-term custody plans are made.
The Parents Are Suddenly Unable to Care for the Kids
Whether due to illness, injury, incarceration, or death, parents may become suddenly unable to look after their children properly. As a grandparent, you can file for emergency custody when no parental caregiver is available.
The Children Are at Risk of Harm
If the children are in an unsafe environment, like living with an abusive partner of the parent, you may need to file for emergency custody. This can provide stability and safety while the court case proceeds.
The Parents Voluntarily Relinquish Custody
Sometimes parents may willingly want grandparents to take over custody of their children due to their own limitations. In these cases, emergency custody can be filed to make the new arrangement official.
In these kinds of dire situations, emergency custody allows grandparents to immediately care for their grandchildren.
How Do Grandparents File for Emergency Custody?
Filing for emergency custody as a grandparent will involve going through your local family court. Here are some steps to take:
- Consult an attorney – Have a family law attorney help prepare your emergency custody request. They can advise you throughout the process.
- Document the need – Gather evidence about the dangers the children are facing or why the parents cannot care for them. Police reports, drug tests, medical records, or other documentation can help prove the emergency situation.
- File a petition – With your attorney, file a petition for emergency custody in family court. This explains why immediate custody is needed.
- Appear at a hearing – The judge will hold an emergency hearing very quickly and you must justify the need for emergency custody. Bring witnesses or other evidence.
- Comply with orders – If emergency custody is granted, follow any conditions set and prepare for further hearings. Getting a guardian ad litem or conducting a home study may be required.
Throughout this process, focus on explaining why emergency action is essential to protect the wellbeing of the grandchildren. Be prepared to care for the children immediately if granted custody.
What Factors Do Judges Consider for Emergency Custody?
When grandparents request emergency custody, judges will review:
- Immediate physical safety – Is there an urgent need to protect the children from harm/danger?
- Parental fitness – Why are the parents currently unable to care for the children properly?
- Child abandonment – Have the parents left the children without proper care for a period of time?
- Best interests of child – Would living with the petitioning grandparent be best for the child’s physical and emotional needs?
- Kinship care – Is there a preexisting close relationship between the grandchildren and grandparents?
- Siblings – Would keeping any siblings together be important?
Judges must determine if emergency action is warranted based on the current situation. They also consider how to cause the least disruption possible for the children.
What Legal Rights Do Grandparents Have?
Grandparents have a few options when pursuing custody rights of their grandchildren. These include:
- Power of Attorney – This gives grandparents decision-making power if the parents are temporarily unavailable but retain custody.
- Third Party Custody – This allows grandparents to take over physical and legal custody when parents are deemed unfit.
- Kinship Care – This is formal foster care by relatives, allowing grandparents to become licensed foster parents for grandchildren.
- Adoption – In severe cases, grandparents may permanently adopt their grandchildren when parental rights have been terminated.
Which option is best depends on the situation. Emergency custody can lead to temporary or permanent custody arrangements.
What If the Parents Contest the Custody?
If the parents object to the grandparents taking emergency custody, they have the right to contest it. The judge will then hear arguments from both sides about what is best and safest for the children.
Some tips if the parents contest the custody:
- Remain calm and focus on the facts.
- Provide documentation of the emergency situation.
- Emphasize how the change is in the children’s’ best interest.
- Request an independent child custody evaluation.
- Ask about having visitation arrangements to allow the parents to spend time with the children.
- Seek mediation to come to an agreement and avoid a drawn-out court battle.
Even if the parents do not agree at first, they may come to accept the new arrangement over time if it is clearly benefiting their children.
How Do Emergency Orders Get Enforced?
Once an emergency custody order is issued, the grandparents will need assistance enforcing it. The court will be unlikely to simply remove children from the parents and give them to the grandparents.
Instead, law enforcement may be ordered to carry out the transfer of physical custody. If needed, the sheriff or police can ensure the judge’s emergency custody order is properly enforced.
It’s important to have a detailed custody order that specifies when, where, and how the physical exchange of the children will take place. The court can use its authority to enforce compliance of both parties.
Having an attorney and law enforcement ready helps ensure a smooth transition minimizing distress for the children.
Consult an Attorney About Your Options
Filing for emergency custody of grandchildren can be complex and time-sensitive. If you have concerns about your grandchildren’s safety or well-being, immediately consult a family law attorney experienced in emergency custody cases.
They can properly advise you on the laws in your state, your rights as a grandparent, and how to approach the court process. With emergency custody, fast action guided by legal advice can help provide protection and care when children are at risk and vulnerable.