Seek Emergency Custody Of A Child Through Guardianship
Video Transcribed: How can a grandparent file for emergency custody in the state of Oklahoma? This is Tulsa Grandparents Rights Lawyer, Justin Mosteller, and a big part of my practice is grandparents’ rights. And so I’m going to spend a little bit of time talking to you about this today.
Now there really is only one good way to seek emergency custody of a child, and that is through guardianship. Now in guardianship, you have to provide evidence to the court that a parent is unfit or unavailable to take care of a child and that guardianship is therefore necessary.
I’ve talked to in other videos about what unfitness looks like and what it means. In this video, I want to just focus on what you can do if you find that a parent, or if you believe that a parent is unfit or unable to take care of a child. In that context, you really should reach out to an attorney and discuss the facts in your case. And at that point, if the facts fit the legal definitions, you would seek an emergency guardianship.
Now an emergency guardianship is a procedure that is used specifically to get a guardianship in place when there is an emergency. So the child has to be in real danger of abuse, neglect, or the parent has to be in a really bad situation that makes abuse or neglect possible, even likely. And in those circumstances, you would file the emergency and you would get what’s called an ex parte hearing.
An ex parte is just a fancy legal word for, “Without the other side.” So you go in with your attorney and speak to the judge directly. Or in some cases due to COVID, you actually send in your petition and the judge just reviews the petition, might call if he or she has some questions. At that point the judge can order the special guardianship to exist, emergency guardianship to exist, and you would then have authority to go and get the kids immediately.
Now, I have seen in many cases that with uncooperative parents, especially with drug use involved, they might be living in different places every day with the kids, in those circumstances sometimes you have to get a little bit of extra help from the court to actually get custody of a child.
And you can do that through what’s called a writ of assistance. A wit of assistance given from a guardianship judge is basically an order to the police to use reasonable force if necessary to acquire the child and give them into the custody of the guardian. Courts don’t like to issue that.
Obviously, it’s a pretty stark remedy. But in cases where guardianship has been granted and the guardian has been unable to get custody of the children, at that point the judge and the court will issue a writ of assistance.
After this first phase where the court grants the guardianship and potentially grants a writ of assistance, at that point you basically have to show up for what’s called a show cause.
There has to be a hearing where the parents are able to object to the guardianship and able to put on evidence showing that they are fit or are available. That hearing that, show cause hearing, is when they are given that opportunity. At that hearing, that’s when you’re really going to have a trial on the merits.
Oftentimes that hearing will get continued several times, especially lately due to COVID-19. But that is the hearing that matters the most in the guardianship context. In my personal practice, especially when drug use is involved on the part of the parent, we will typically file a motion for drug examination prior to that show cause hearing.
And what I tell all my clients is that they should, one, be ready to take a drug test themselves and two, be ready, willing, and able to pay for that drug test so that there’s no excuse on the part of the parents and the drug test can be obtained prior to court. And the other thing I’ll just mention about drug testing is that it’s really important to get the right kind.
Urine tests, they’re not accurate for a very long period of time. In the incidence of methamphetamine and other hard drugs, oftentimes they’re metabolized out of your system and undetectable in a urine test within five to six days of use. So you really want to go for a hair follicle or a nail bed test in those circumstances. That’s usually the best way to get that evidence for the show. Cause hearing.
Hopefully, this has answered some of those questions that you might have about what to do in the emergency context. That really is for grandparents the only way that you can get emergency relief. Parents can file for emergency custody if the other parents are misbehaving in such a way as to endanger the children.
But for grandparents, we don’t have parity with these parents. We’re operating with some handicaps in terms of our ability to get custody because of constitutional protections for the parents and an assumption that the parents are the best place for a child to be.
If you’d like to speak with us, please reach out to speak with a grandparents’ rights attorney. We would be very happy to talk with you and give you some advice about your situation. Thanks, and I hope this has been helpful.