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Child Custody

Questions & Answers

Question: I am a father of two and my wife physically and mentally abuses our kids. How can I get emergency custody of my two kids?

Answer:

The answer depends on the current status of your domestic relations court case – assuming any exists.  If neither you nor your wife has filed any legal papers yet, then one assumes that one of you will petition for divorce or legal separation.  You should include your request for custody in the petition when it is filed. If the situation is truly urgent, and cannot wait for the trial, then you will also want to ask the court for a temporary order granting you sole legal custody while the case is pending.

You can ask for a temporary order in one of two ways:

If the matter is urgent (i.e. it cannot wait six to 12 months for trial), but does not involve a threat of irreparable injury to you or the child, then you should follow the procedures set forth under  Rule 47 of the Arizona Rules of Family Law Procedure. This rule empowers you to ask the court for a temporary order that will govern the parties until a trial can be heard.  You can ask for temporary orders concerning custody, parenting time, child support, spousal maintenance, and other property matters relevant to a divorce.  This rule has specific requirements concerning what documents have to be filed, so make sure to read it carefully.

If the matter is critical, and does involve a true emergency, then  Rule 48 of the Arizona Rules of Family Law Procedure provides you an option as well. This rule permits you to seek emergency assistance from the court without notice to the other side.  Be warned, however, that judges look at these motions very carefully for some explanation as to why you could not give notice to the other side.  The judge will also demand an explanation for why the matter is so urgent that it requires immediate court action.  In fact, the very language of the rule itself requires you to give those explanations, whether the judge asks for them or not.  In other words, emergency motions without notice to the other side are looked upon with extreme disfavor precisely because they do not give the other party an opportunity to be heard before important rights (e.g. custody and parenting time) are taken away.  As with Rule 47, you have to provide specific documentation.  So read the language of Rule 48 carefully before firing off any kind of a document that may get you into trouble later down the road.

November 03, 2006