What Is an “Emergency” for Purposes of Emergency Custody?


Emergency custody is one of the most difficult concepts for clients, and lawyers, to understand. The statute on point in Oklahoma is 43 O.S. section 107.4. The statute defines conditions which constitute an emergency as follows: “the child is in surroundings which endanger the safety of the child and that if such conditions continue, the child would likely be subject to irreparable harm.” The question then becomes “what situations endanger the safety of a child and make irreparable harm likely?” There are as many opinions about this as there are people in the world. While people have differing views on whether a given situation is an emergency, there are some situations that will typically constitute an emergency that judges recognize. Here are some examples:

  1. Physical/sexual abuse. If a child has been abused, and there is evidence to prove it, pretty much all judges will grant emergency custody. Suppose there is evidence that one parent yells at the children. Some might consider this emotional abuse. This probably would not be an emergency because emotional abuse is very subjective. The fact that one parent yells at the children might be good evidence to use at trial supporting a request by the other parent for custody, but it probably isn’t enough to be an emergency the law will recognize.
  2. Drug abuse in the home. If there is proof of drug abuse in the home of an illegal drug like cocaine, meth or heroin, then judges will likely grant an emergency order. For drugs like marijuana, given the current legal climate, that is probably not an emergency in the eyes of the law because marijuana for medical use is legal in Oklahoma. However, just because a drug is legal doesn’t mean abuse of that drug won’t give rise to an emergency order. If alcohol use leads to multiple DUI’s, or other criminal activity like assault and battery, then judges will probably grant an emergency order.
  3. Uncontrolled mental illness. Mental illness is a tricky situation, which may not necessarily be an emergency. The fact that someone has bipolar disorder is not by itself an emergency; however, if the situation is not under control there may be an emergency. If a bipolar person is sleeping long hours while a baby goes unfed, with diapers not changed, and without supervision, that is an emergency. If a person with depression doesn’t take the kids to Main Event on a Saturday because they don’t feel like going, that is not an emergency.

These are just a few examples of situations that may or may not be an emergency. I’ve heard clients complain that the law is too stringent. Their babies are suffering and they can’t do anything! I’m a parent, so I think I can understand how frustrating that feeling can be. The reason that the law is so strict on what constitutes an emergency is because people cannot be deprived of the right to parent their kids without due process of law. As a principle of constitutional law, the level of process someone deserves depends on the importance of the right at issue. For example, you are entitled to less procedural safeguards for losing a drivers license than for losing your kids. Kids are more important than drivers licenses, so the procedure is more protective of one than the other.

Emergency custody requires seriousness of the potential harm to kids as a procedural safeguard. This makes it less likely that kids will be taken away without justifying circumstances. An emergency custody hearing is much shorter than a custody trial. This is because the emergency nature of the situation should be self-evident. If the situation is more subjective, then the affected parent is entitled to a full hearing with more expansive presentation of evidence.

I think as a society we can all at least appreciate the idea that we don’t want the government to take away kids from one or both parents on a whim or without serious circumstances. That may mean you will have to wait for a trial before your story is fully heard, but it also means that you are protected from non-emergency suspension of your custody rights.