When do you need to call an attorney for emergency custody?
Consider a sliding scale between calling the state getting called and waiting for 2-3 months for a regular custody court date...
Art. 3945 does not apply to orders of custody requested in cases of domestic abuse or family violence. This means if a protective order is filed, emergency custody can be obtained through those procedural articles. Further, if there is a DCFS case, custody can be obtained through those procedures. I generally tell clients that emergency custody is good for problems/behaviors that need to get addressed quickly (the parent cannot wait a full 2 months for a court date) and for problems/behaviors that do not rise to the state picking up a case. So if something really bad is happening/has happened to a child, yes, call law enforcement asap! That's first! Only after that does not work is a 3945 good. Alternatively, if something just doesn't sit right and the parent is able to articulate what's going on and an attorney screens it and determines it needs to go to the judge asap, that's when a 3945 is good.
What are the rules for getting an ex parte custody order?
Under La. C.C.P. Art. 3945, a parent or interested party may petition the court for emergency custody of the child.
What is "ex parte" custody? In Louisiana, one party can request an "ex parte" order of temporary custody of a minor child in a legal case (such as a divorce) involving custody. "Ex parte" is the Latin term meaning "on one side only" or "for one party." In the context of an ex parte custody order, it means that the order is granted without the other party being present or given official/regular court notice. This is a temporary order that is meant to provide immediate relief in cases where the child is at risk of immediate and irreparable harm if the other party is not temporarily excluded from custody. The other party will be given notice and an opportunity to be heard at a "rule to show cause" hearing.
Immediate and irreparable harm An ex parte order can be granted without notice to the other party only if it's shown that immediate and irreparable harm will result to the child if the other party is not temporarily excluded from custody. When a Judge receives an ex parte petition, they are specifically looking to see if there will eb immediate or irreparable harm to come to the child if the temporary custody order is not granted. Because giving examples of harm to a child can be very graphic, I will not list examples here. Please understand that "my ex is mean to my child" is not sufficient and must be clearly pled with dates, times, incidents, and, if necessary, exact language used. Text messages are great evidentiary support for an ex parte petition. Other evidence is often welcome also.
How long does temporary custody last?
The ex parte order will expire after 30 days, but can be extended for an additional 15 days for good cause. The court has a duty to set your ex parte rule to show cause date within 30 days of receipt of the petition. This then puts the pressure on the sheriff to serve the opposing party prior to the hearing date. If service has not been perfected or waived by appearance, there cannot be a hearing on custody. As a result, lack of service is a frequent example of "good cause" to delay the ex parte rule to show cause by 7 days (until the Judge's next court date) or up to 15 days. Under no circumstances is an ex parte temporary custody order good after 45 days. Procedurally, it is as if it didn't happen once 45 days has occurred.
Temporary visitation The order must include provisions for temporary visitation by the other party, unless visitation would cause immediate and irreparable harm to the child. The ex parte order must be endorsed with the date it was signed, the date and time of the rule to show cause hearing, and include specific visitation provisions. If the ex parte order is denied, the court shall specifically allocate between the parents the time which the child shall spend with each parent at the hearing on the rule to show cause, unless immediate and irreparable injury will result to the child. These details are what the party getting served will see.
Rule to show cause The other party must be given notice of a "rule to show cause" hearing. At the hearing, the other party can argue why they should have custody or visitation of the child. This hearing is to take place before a judge, even if it's set in a jurisdiction that has hearing officers.
Particular requirements If the ex parte order does not follow the requirements outlined in Art. 3945, it cannot be enforced. For example, there must be a verified 3rd party affidavit, a certificate of notice must be included, and other nuanced procedural language. That's why it's so important to consult with an attorney for this type of procedure. Unfortunately, because there will ultimately be three (yes 3!) court appearances following the filing of this document, many attorneys charge approximately double what they would for non-emergency custody.