Abandonment Can Be Considered an Emergency

Video Transcribed:  My name is Brian L. Jackson. I am a Tulsa father’s rights attorney. Today, I want to talk to you specifically about emergency orders and when you should be seeking one. This is, unfortunately, a more common problem that I find myself coming across than I think most people would be comfortable knowing is a situation where I have a father come to me asking, “Something happened and I’m really worried about my children’s safety, and what can I do about it? And is it an emergency?” Well, I’ll start by talking about the statutory language. Under Oklahoma law, and this is under… You can find this statute under Title 43.

For the purposes of asking for an emergency custody order, the rule is that you have to establish that the child is in surroundings that create an imminent peril of immediate harm, immediate irrevocable harm that can only be remedied by immediate action of the court. And that’s a paraphrase. It’s not the exact language of the statute. But essentially, you have to show immediate and irrevocable harm is threatened, and it has to be something severe enough to motivate the court to act.

So you’re talking about things like threats of physical abuse to the child, sexual abuse, serious neglect. Drug abuse in the home can sometimes be a situation that can justify an emergency. With older children, if you have a situation where the parent is unable to control the child and the child’s placing him or herself in danger, that could be considered an emergency.

Abandonment can be considered an emergency. For example, if you have a parent who’s thrown a teenage child out of the house. But you’re talking about serious circumstances where there’s a major threat to the child’s safety, health, or welfare. Also, courts are bound by a second rule that applies to these, which is what’s called the least restrictive means.

So if the problem can be remedied by a measure less than removing the child out of the custodial environment, then the court will typically resort to that means. So for example, if you had a situation where mom’s getting drunk all the time in the presence of the children and to the point where she’s unable to care for those children, the court may enter an order prohibiting drinking around the children before it removes custody.

Now mind you, if you had a situation where that’s been done and mom’s been warned about it and she’s still doing it anyway, that may add up to the court ultimately removing custody and placing the children with you, dad. But it’s not an automatic thing.

The court may resort to less restrictive means. Emergency orders are sometimes also accompanied by another type of order, which is called a writ of assistance or a writ of habeas corpus. A writ of assistance basically is an order to local law enforcement to assist you in recovering possession of the children.

Writ of habeas corpus is a little bit different. It’s basically a writ that is commanding someone who is in unlawful possession of the body of the child or children to produce the kids before the court. Now that can also be styled in the manner of a writ of assistance as well, where it authorizes law enforcement to get the children, or it can be ordered directly to whoever has physical possession, i.e., the other parent or some other relative.

And they’re sometimes used in the enforcement of an emergency custody order. And where you want one of those is if you have a situation where it’s unlikely the other parent will just comply where you’re going to have some difficulty in just going and picking up your own kids.

It’s a good idea to talk to your lawyer about that if you have a particularly explosive relationship with the other parent, with mom. Or really, if it’s a situation, any situation where there’s the potential for things going badly, and you know what I’m talking about, then it’s a good idea to have law enforcement there.

And oftentimes, law enforcement doesn’t want to insert themselves into these situations absent a writ. So you want to be prepared for that. If you’re going to go ask for an emergency order, you probably want to get the writ to go with it.