Child in Danger! But There’s a Custody Order – What to Do?

If a child is endangered when with one parent, but that parent has rights under a custody or visitation order, the other parent may want to know what to do. If you think your child is in a dangerous situation, but the child welfare agencies haven’t stepped in, then it is possible to ask the courts for help, sometimes on an emergency basis. The law does make this a fairly difficult process and tries to limit emergency changes to real emergencies.

In almost every state, a custody and visitation order can be changed if there are significant changes in the family circumstances, or if the change would significantly benefit the child, or some other condition is met. In both Oregon and Washington, there usually has to be a new and substantial change in circumstances and the change has to be in the child’s best interests.  (Washington tends to set the bar a little higher in finding a substantial change and that a change is in a child’s best interest than Oregon does.)

The problem is that a motion to change custody or visitation can take months to work through the court system. If the child may be at risk while the change is pending, what can a concerned parent do?  Fortunately, the law does have a procedure for emergency changes.

In Oregon, the concerned parent has to show that the child is in immediate danger or physical or psychological harm – and that showing has to be that the risk is highly probable. One successful motion I handled involved a mother who left two children, aged 4 and 6, at home late at night without a sitter, and went out drinking. The children woke up, and one of them called 911 when she realized they were alone. The next morning, the father called me to report that the child welfare office had taken the children and that he wanted to move for custody. The judge gave him custody and affirmed it when the mother challenged the ruling.

In Oregon, an emergency motion can be made with minimal notice to the other side (primarily an attempt to discuss the matter before filing), but the other parent is allowed to ask for a full hearing after the emergency ruling. Usually, the concerned parent will also have to move for a permanent change.

In Washington, the concerned parent generally has to show that the child would be at risk of physical, sexual, or emotional abuse before the court will issue an emergency order. If an emergency change is ordered, the judge will usually require a hearing for permanent modification and may require a full hearing to confirm that his or her ruling on the emergency was right. A less drastic procedure may be to ask to have the other parent’s time with the child restricted while a permanent change is pending, but generally the concerned parent will have to show the same kind of risk.

If you can’t reach an agreement with another parent to change a custody or visitation order (and you usually won’t in an emergency), you can expect a difficult situation. Usually, it’s a good idea to talk to a lawyer to evaluate whether the evidence really is enough to get a judge to order a change, or to prove that there is an emergency. It may also be reassuring to get a lawyer’s opinion whether the situation really is as bad as you think. If it is, the lawyer will be able to help you collect witnesses and evidence and organize the case for the judge, and to make sure all of the necessary steps are taken before going forward.

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