On behalf of The Marks Law Firm, L.L.C. posted in Child Custody and Child Protection Orders on Friday August 16, 2013
Consider two scenarios. In the first, a husband and wife live together and have two young children. The wife returns from work one day and sees husband slapping the child on the face, hands and back; the wife intervenes, and the husband strikes her too. The wife leaves the house with the child and goes to the courthouse to file for an ex parte order of protection (also known as a temporary restraining order) to prevent the husband from having any contact with her or the child until a court hearing decides otherwise. In the second scenario, the facts stay the same, except the parties are now former spouses whose marriage was dissolved by the family court six months earlier.
In the first scenario, the court can issue the ex parte order of child protection; in the second scenario, the court cannot do so.
This at first seems like a very strange and dangerous outcome. Why would Missouri give less protection to children of divorced parents than to children whose parents remain married?
The short answer is the law does give the same protection to children who suffer abuse from parents, but the mechanism to provide that protection differs depending on whether a court previously has obtained jurisdiction over the custody of the child.
In Missouri, once a court enters a custody order for a child, whether as the result of a divorce or a paternity action, the court retains continuing and exclusive jurisdiction over all matters of custody for that child – including matters of abuse by one of the custodial parents. The law takes this approach to limit conflicting or inconsistent orders of custody and to prohibit forum shopping.
When an issue of abuse arises regarding the child after the entry of a custody order, physicians and childcare providers still have a duty to report an act of abuse and that allegation is investigated, with the difference at the end of the investigation that the report will go directly to the court with jurisdiction over the child.
Great, you say, but what do I do to protect my child while the investigation is conducted? Is that not the purpose of ex parte orders of child protection?
Yes, the purpose of the ex parte order of child protection is to keep the child safe, to err on the side of caution, until a court can hear evidence regarding the allegation of abuse. And no, your child would not be left unprotected just because of an existing custody order. You just cannot go to the courthouse and file the same order of protection you would have filed before the court entered a custody order. Instead, you must file a separate motion with the court that entered the custody order – the court that has jurisdiction –for emergency relief, which is called, oddly enough, a temporary restraining order.
So I can get the same relief, even with the same name, but I need to go back to court rather than the “regular” method? Yes. So I will need an family law attorney? Yes.
Why the difference you wonder? Not to give attorneys more work! Because an ex parte order of child protection is very easy to secure, a parent who might want to interfere with the other parent’s custody could manufacture an allegation of abuse and deprive the other parent of legal custody. Because both parents are under an existing court order, and to prevent taking unfair advantage of the ex parte protection process, the law requires this different route. It does not give any less protection to the child; in fact, it provides more protection by making sure the child will not lose physical custody with one parent because of the misconduct of the other parent.
If you have questions about an order of child protection, contact us – we can help.