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Understanding the Legal Process

The Prevent Child Abuse America publication Child Abuse and the Law is designed for social workers as a basic legal primer to help them understand the court system.  However, it is also very useful for the general public. The publication provides basic information needed to guide readers through the legal process in a child abuse case. The following information is an excerpt. 

Emergency Custody State Statutes 

All states have statutes that allow emergency custody of abused or neglected children.  These statutes differ significantly from state to state.  

Emergency custody without parental consent falls into two categories:  without a court order and with a court order.  Some states provide for both methods, and some permit only those with a court order.  

Because of the great variety in laws, you should research the laws of your own state for the specific situations, if any, when you may remove a child without a police officer or other authorized person.  You should also determine what policy is followed by your agency before taking any action in this area, since actions taken contrary to agency policy could lead to legal liabilities.  

Emergency Custody without a Court Order 
Nearly every state statute names specific persons who are authorized to remove a child in an emergency situation. In every state, law enforcement officers are so authorized. Others permitted to remove a child vary from state to state. In roughly one-half of the states, child protective service workers or other social service workers have this authority.  

Most statutes require a child to be in danger in order to be removed without a court order. Other statutes require abuse or neglect to be present. There are two common tests specified by statutes.  

  1. The child is in such conditions or surroundings that his or her welfare requires the immediate assumption of his or her custody by the court. 
  2. The child is seriously endangered in his or her surroundings and removal is necessary. 
Most states have statutes or series of statutes describing precisely what must be done immediately after an emergency removal without a court order in order for the continued custody to be valid. Almost every state that allows emergency custody without a court order prescribes a time period in which a court order must be sought to ratify the removal or allow continued placement of the child. Typically, such court action must commence as soon as possible, usually within 24-72 hours of the child’s removal. Because provisions vary greatly, you should check the relevant state statute and agency rules.  

Emergency Custody with a Court Order 
In a number of states, the only way to get emergency custody of an abused or neglected child is with an order of the court.  

Getting the court order.

The procedure is similar in every state having this kind of provision, although there may be some local variations.  

  1. A petition is filed with the juvenile court stating the child is in such circumstances that it is necessary for the court to assume immediate jurisdiction over the child.
  2. At the same time as the petition is filed, a summons is usually prepared directing the parent, guardian, or other caretaker to appear in court on a specified day for a hearing on the issue of child abuse or neglect.
  3. The summons is presented to the court, at which time the judge decides whether emergency custody is warranted.  If it is, the judge writes the emergency custody authorization.
  4. The appropriate person takes the summons to the child’s location, presents it to the parent, foster parent, or guardian, and picks up the child.
 
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