On behalf of The Marks Law Firm, L.L.C. posted in Child Protection Order and Child Custody on Tuesday, July 22, 2014
Most people probably realize that if they have been subject to physical abuse or stalking by an individual, whether a spouse or a near stranger, they can obtain an ex parte order of protection through the court that will restrain that individual from having any contact or risk time in jail.
Not as many people realize this protection applies for children as well, but obtaining this relief has more procedural hurdles.
In a married household with children, if one spouse physically abuses or threatens the other spouse and the children, or only the children, the threatened spouse may petition the court for an ex parte order of child protection, which would effectively separate the threatening spouse from the children (and likely the marital residence) until the court has a chance to hold a hearing on the matter (within fourteen days by statute).
What if the same situation took place in a household where the parents lived together but were not married? So long as no court-ordered custody plan was in place, the threatened parent could obtain the same relief as in the married household example.
What if instead of a household with children, the parents are divorced or otherwise under a court-ordered custody plan?
In this situation, Missouri law prohibits a court from issuing an ex parte order of child protection.
But this does not mean that a child at risk has no remedy. It just means that the threatened parent must return to the court that issued the custody order and ask for a temporary restraining order (TRO), which may also be entered ex parte if an emergency warrants. Though governed by different procedural rules, the TRO has the same effect as an ex parte order of child protection. After a hearing, the court could enter a full injunction without permanently modifying the existing custody order, and the court would have leeway to craft a reunification plan with supervised visitation. Alternatively, the threatened parent could file a motion to modify with the abuse as the changed circumstance, giving the court even more options to protect the child.
Often when children become victims of abuse, the court will involve the Children’s Division of the Department of Social Services (DSS) to conduct an investigation (in many cases mandatory because of reporting obligations) and/or appoint a guardian ad litem to represent the interests of the children. Should DSS find evidence of criminal abuse, it would turn the matter over to the prosecuting attorney for consideration.
In cases where both parents put the child at risk or only one parent is involved, the court will have two options – look to relatives, like grandparents, to make a custodial placement, or place the child in the protective custody of the State, whereby a juvenile officer would determine placement in a shelter or foster care.
When children are at risk of abuse, parents as well as persons with reporting obligations (like doctors and childcare providers) have options that do include seeking an order of child protection.
If you have questions about orders of child protection, contact us – we can help.