child crying

If you are ever in the awful situation that you worry about your child’s safety and well-being in the other parent’s care, you may feel helpless as the non-custodial parent.

When there is a court order in place regarding custody, you know the importance of strictly complying with it. Taking matters into your own hands would be a mistake, and certain conduct could affect both your parental rights and relationship with your child.

As you wonder what options are available to you as a non-custodial parent, you also fear that your child is at risk of harm with every passing moment.

Fortunately, there is a process for emergency temporary custody in Texas, which is intended to address these types of situations. Plus, you may be able to take advantage of the proceeding if you are a grandparent instead of the non-custodial parent.

Retaining solid representation is critical, as the process is very detailed and mistakes can result in disastrous delays. You should consult with an experienced child custody lawyer regarding your circumstances right away, but you can also read on for some important information on regarding how the law works.

Overview of Emergency Temporary Custody in Texas

Under the Texas Family Code, a person can obtain a Temporary Ex Parte order to put legal measures in place for the purposes of protecting a minor child. The term “Ex Parte” refers to the fact that you do not need to give the child’s other parent notice of the proceeding, which would be required in a non-emergency situation.

Because the Texas court system takes child safety very seriously, the risk of harm to the child outweighs the custodial parent’s rights.

The Process for an Emergency Petition for Child Custody

There are very strict rules for getting an emergency temporary custody order under the statute. You initiate the proceedings by filing a petition and supporting documents, as described below.

There must be sufficient evidence to convince the judge that there is a “clear and present danger” of violence or other harm to the child. If you meet this standard, the court will change the custody arrangement that was previously entered. You obtain custody over the child, without notice to the other parent.

When you file your petition, you are essentially requesting that the court issue a Temporary Restraining Order (TRO) against the custodial parent. Accompanying your petition is a Request for Extraordinary Relief, which is another way of stating that the matter is an emergency.

Through the process you can obtain an order without conducting a hearing, and without allowing the child’s other parent to be present. Because the TRO for emergency temporary custody has a significant impact on the custodial parent’s rights – without giving him or her the opportunity to be heard – you must include credible, solid evidentiary support through the documents you file.

Essential Documents for Seeking Emergency Temporary Custody

The evidence you supply with your petition for the TRO is the most critical aspect of the process, as the burden of proof is considerable. The documents that you need to support your request for emergency relief should include:

Petition for Temporary Custody: This is a form that is available through the court where you will be filing it, but it requests very generic information and does not offer specific instructions on how to complete it.

The petition for a TRO is where you lay out your entire case, including the circumstances that are placing your child in danger. You must go into great detail to describe such factors as:

  • Child abandonment;
  • An extremely unsafe living environment;
  • Sexual or physical abuse of the child;
  • Alcohol or drug abuse by the custodial parent; or,
  • Other extreme circumstances.

Note that it is unlikely that a judge will grant request for a TRO on an emergency basis if you claim verbal or emotional abuse. Such conduct does not typically rise to the level of requiring immediate change of custody.

Emergency Circumstances: Besides the circumstances themselves, you must also be able to convince the judge that not taking action – on an emergency basis – threatens the child’s safety. The “clear and present danger” standard requires you to prove that there is an immediate, realistic risk of harm, such that the judge needs to issue the order even without notice to the custodial parent.

Affidavit and Evidence: The court’s official petition for a TRO is a form, so you should go into greater detail and provide relevant evidence by attaching additional documents. An affidavit is your sworn statement regarding both the threat to your child’s safety and the circumstances that make the TRO an emergency. Because you swear to your statements under oath, there can be serious penalties for providing false or misleading information.

In addition, you should include any other documentation that is relevant to the court. Examples of additional evidence to support your petition and affidavit may include:

  • Police reports
  • Pictures or video;
  • Social media posts;
  • Text messages; and,
  • Any other evidence that proves that you have good reason to be concerned about the child.

Results of the Petition for Emergency Temporary Custody in Texas

If the court does grant your emergency TRO for temporary custody, this does not conclude the matter. A TRO can only last for 20 days, though you can petition to have the court extend it for another 20 days.

Still, the parent who has lost custody rights will have a chance to appear in court and contest the change in custody. There will come a point where the judge will conduct a hearing on a permanent custody arrangement that is in the child’s best interests.

Trust an Experienced Austin Child Custody Lawyer About Emergency Circumstances

Time is of the essence if you feel your child is in danger while in the custody of his or her other parent, so taking quick, proper legal action is crucial. Please contact the Law Office of Ben Carrasco, PLLC right away by calling (512) 320-9126 or going online. We can schedule a consultation regarding your situation and get started on the process to obtain emergency temporary custody in Texas.

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