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Guide to Emergency Custody in Texas 1

When you need an emergency custody order, it’s always ideal to hire a family law attorney. Although you can always represent yourself at a family court without the aid of an attorney, it’s always better to hire one so that you can be guided through the process accordingly. Every case is unique and your circumstances may not be exactly the same as everyone else’s but if you want emergency custody to be granted by the judge, one requirement is constant: you need to present proof in court. However, the proof you need might be different from that of others, depending on your personal circumstances.
You will also have to consider the rules of the local court, the judge for your case, the guidelines of the Texas Family Code and the Texas Rules of Civil Procedure. Some courts have made their rules available online, but this is not the case for every court. If you cannot find information about the rules of the local court where you filed your case, you can always call the court to speak with a clerk in order to find out more about the rules.
To know more about the judge, you can try to sit in court while there is an ongoing hearing to see what the judge is like. Note that some judges tend to do things differently, so expect some slight differences.

Emergency Orders

There are many types of emergency orders, not just emergency custody. However, most of the emergency orders usually deal with minors. As for emergency custody orders, if you want to be granted this custody order, you will need to file a custody petition in court. However, there are also many different types of custody petitions for you to choose from.
You can file for Divorce Establishment of Paternity and you can also file for a modification if there is an existing custody order. You will have to choose the right petition to file with regards to the situation you’re in. Aside from the petition, you will also have to file a Temporary Restraining Order (TRO), asking for extraordinary relief. Usually, the petition and the TRO work hand in hand. By filing an emergency motion, you are requesting the court for a temporary order and TRO.

Filing a Petition

Basically, your petition is also referred to as a ‘motion’ and if the judge will grant your petition, he will sign a document, called an ‘order’. What we are aiming for in filing a petition is that signed document. The petition you should file should include important information such as what your emergency is and why the judge should grant you an order without notifying the other party. The petition should show that there is a valid need for emergency relief for a child who is a minor. It should also state that a risk for immediate danger and harm for the child exists.
There should be an affidavit attached to the petition that states in detail the nature of harm or immediate dangers that affects the child. You will have to provide this because this is an evidence you can present to the judge in order to convince him or her to grant you the order that you are asking for. There will be no hearing before the judge will grant the order, hence, it is really important to pay attention to the details you include in the affidavit.
Typically, before the judge will issue a ruling, every party involved will get a notice and an opportunity to be heard in a hearing. In this case, there can be a hearing, sometime in the future, after the judge already signs an order.

Proving Immediate Danger and Harm in Court

You might be wondering what are the things that the court would consider as immediate danger and harm in order to grant your petition for emergency custody. Usually, the definition of ‘immediate danger and harm’ is completely up to the decision of the judge who is reviewing the paperwork for your case.
Common examples of the things judges find as immediate danger and harm include significant drug abuse, alcohol abuse, physical or sexual abuse, emotional abuse and verbal abuse are pretty common but simply announcing these may not be enough to receive the emergency custody order from the judge. Evidence will, of course, still play a crucial role in getting your petition granted. You can submit an affidavit as we have mentioned before, police reports, photos, text messages, and basically anything that is relevant to your petition. Once you have the evidence ready, you can go to the district clerk at the court where you have previously filed your old case. You can then file the documents with the clerk. Make sure you have the original and three copies of the documents. Expect the clerk to stamp the documents before giving you back the copies. The clerk will file the original documents relevant to your petition.

Getting the Judge to Sign the Temporary Order

Since filing an emergency petition is a little different than normal court proceedings, you will also have to meet the judge in a different manner. If you want to present your petition to the judge within the day, it would be a good idea to sign up for the uncontested docket in order to do so. However, the rules may vary depending on the county you’re in. In some cases, you might not be able to see the judge personally at all. The judge could just review the paperwork and sign the order without a hearing without meeting you at all.
When the judge grants the emergency order, it will be effective immediately. There will still be a hearing that will take place, wherein the judge will decide whether the temporary order you were granted will be made permanent. The other party will be given the chance to defend himself or herself. You will also need to prepare further for the hearing. You might want to provide additional evidence to make a stronger case.
The process of getting your temporary orders as well as the path to making sure it will become permanent is long and tough. Hiring an experienced family lawyer you can trust will make it easier. It will also give you some peace of mind to know that someone is fighting with you.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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