Filing for a Temporary Custody Order
Temporary custody orders dictate who has custody and visitation throughout court proceedings. They can set child support and address other parenting issues for a limited time period. A temporary order typically remains in effect until a judge ends it, modifies it, or issues a final order replacing it. Sometimes parents won’t need a temporary custody order if they are able to co-parent, but parents with particularly contentious relationships should always get one.
How is custody determined?
There is a presumption, rebuttable by a preponderance of the evidence, that joint custody and equally shared parenting time is in the best interest of the child. If one wishes to deviate from this presumption, the court will construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child’s welfare. The court will consider the following factors to determine the best interest of the child as defined by KRS 403.270:
(a) The wishes of the child’s parent or parents, and any de facto custodian, as to his or her custody;
(b) The wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child’s wishes;
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
(d) The motivation of the adults participating in the custody proceeding;
(e) The child’s adjustment and continuing proximity to his or her home, school, and community;
(f) The mental and physical health of all individuals involved;
(g) If domestic violence is involved, the court shall determine the extent to which the domestic violence and abuse has affected the child and the child’s relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program;
(h) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(i) The intent of the parent or parents in placing the child with a de facto custodian;
(j) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school; and
(k) The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian, except that the court shall not consider this likelihood if there is a finding that the other parent or de facto custodian engaged in domestic violence and abuse, as defined in KRS 403.720, against the party or a child and that a continuing relationship with the other parent will endanger the health or safety of either that party or the child.
The court said there was a “de facto custodian.” What does that mean?
A “de facto custodian” refers to a person who has been shown by clear and convincing evidence to have been the primary caregiver and financial support of a child who has within the last two years resided with the person for at least a total of six months if the child is under three years old, or for a total of at least one year if the child is older than three. De facto status gives those who would otherwise not have standing, the ability to initiate and participate in a court action involving the minor child.
Filing for an Emergency Custody Order in DNA court
What is an emergency custody order?
DNA does not refer to just your double helix in Kentucky family courts, but instead stands for dependency, neglect, and abuse cases. Emergency custody orders, sometimes known as “ex parte orders” or “ECOs”, are temporary orders issued rapidly, usually in cases with domestic violence or child abuse. In a custody case, they require evidence that the child faces immediate risk of danger or abduction.
What qualifies for ECO?
ECOs are issued when it appears to the court that removal is in the best interest of the child and that there are reasonable grounds to believe, as supported by affidavit or by recorded sworn testimony that one or more dangerous circumstances exist and that the custodian of the child is unwilling or unable to protect the child.
These dangerous circumstances include the following: the child is in danger of imminent death or serious physical injury or is being sexually abused; the parent has repeatedly inflicted or allowed to be inflicted by other than accidental means physical or emotional injury; the child is in immediate danger due to the parent’s failure or refusal to provide for the safety and needs of the child.
Physical injury does not include reasonable and ordinary discipline recognized in the community where the child lives, as long as that discipline does not result in abuse or neglect.
Okay. What’s the process like?
According to KRS §620.060, any request for an emergency custody (ECO) order in a dependency, neglect, or abuse case must be in writing and accompanied with an affidavit for emergency custody which contains the contents of the official AOC form, AOC-DNA-2.1 (Affidavit for Emergency Custody Order), which alleges dependency, neglect, or abuse. An affidavit is a legal statement as well as a sworn document that is witnessed by a notary before filed with the court. Child custody cases are often loaded with emotions on both sides, and the affidavit allows both sides to present facts separated from emotions involved. This affidavit will be presented to the judge with any other documentation presented at the time of the filing the request.
The person seeking the ECO shall indicate affidavit whether there are other proceedings pending, or any orders of custody, related to the child in Kentucky or any other state. Once the judge issues the ECO, the person seeking the ECO shall file it and the affidavit with the clerk no later than the close of the next work day, and the clerk will assign a case number.
If not filed with the ECO, a petition will be filed with the clerk within 72 hours of taking the child into custody in the same case file as the ECO and affidavit. A hearing will commence within 72 hours of the filing, at which time attorneys will be appointed as necessary for the parents who are not able to afford one, and a guardian ad litem will be appointed for the child. A guardian ad litem (often referred to as a GAL) is an attorney appointed by the court to represent the best interests of the child and to provide legal representation for the child. The GAL is responsible for helping the court make an informed decision about the welfare of the child.
