§ 5308 - Temporary care order
§ 5308. Temporary care order
(a) The court shall order that legal custody be returned to the child's custodial parent, guardian, or custodian unless the court finds by a preponderance of the evidence that a return home would be contrary to the child's welfare because any one of the following exists:
(1) A return of legal custody could result in substantial danger to the physical health, mental health, welfare, or safety of the child.
(2) The child or another child residing in the same household has been physically or sexually abused by a custodial parent, guardian, or custodian, or by a member of the child's household, or another person known to the custodial parent, guardian, or custodian.
(3) The child or another child residing in the same household is at substantial risk of physical or sexual abuse by a custodial parent, guardian, or custodian, or by a member of the child's household, or another person known to the custodial parent, guardian, or custodian. It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:
(A) a custodial parent, guardian, or custodian receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and
(B) a custodial parent, guardian, or custodian knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.
(4) The custodial parent, guardian, or guardian has abandoned the child.
(5) The child or another child in the same household has been neglected and there is substantial risk of harm to the child who is the subject of the petition.
(b) Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the legal custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child, including, in order of preference:
(1) A conditional custody order returning legal custody of the child to the custodial parent, guardian, or custodian, subject to such conditions and limitations as the court may deem necessary and sufficient to protect the child.
(2)(A) An order transferring temporary legal custody to a noncustodial parent. Provided that parentage is not contested, upon a request by a noncustodial parent for temporary legal custody and a personal appearance of the noncustodial parent, the noncustodial parent shall present to the court a care plan that describes the history of the noncustodial parent's contact with the child, including any reasons why contact did not occur, and that addresses:
(i) the child's need for a safe, secure, and stable home;
(ii) the child's need for proper and effective care and control; and
(iii) the child's need for a continuing relationship with the custodial parent, if appropriate.
(B) The court shall consider court orders and findings from other proceedings related to the custody of the child.
(C) The court shall transfer legal custody to the noncustodial parent unless the court finds by a preponderance of the evidence that the transfer would be contrary to the child's welfare because any of the following exists:
(i) The care plan fails to meet the criteria set forth in subdivision (2)(A) of this subsection.
(ii) Transferring temporary legal custody of the child to the noncustodial parent could result in substantial danger to the physical health, mental health, welfare, or safety of the child.
(iii) The child or another child residing in the same household as the noncustodial parent has been physically or sexually abused by the noncustodial parent or a member of the noncustodial parent's household, or another person known to the noncustodial parent.
(iv) The child or another child residing in the same household as the noncustodial parent is at substantial risk of physical or sexual abuse by the noncustodial parent or a member of the noncustodial parent's household, or another person known to the noncustodial parent. It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:
(I) a noncustodial parent receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and
(II) the noncustodial parent knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.
(v) The child or another child in the noncustodial parent's household has been neglected, and there is substantial risk of harm to the child who is the subject of the petition.
(D) If the noncustodial parent's request for temporary custody is contested, the court may continue the hearing and place the child in the temporary custody of the department, pending further hearing and resolution of the custody issue. Absent good cause shown, the court shall hold a further hearing on the issue within 30 days.
(3) An order transferring temporary legal custody of the child to a relative, provided:
(A) The relative seeking legal custody is a grandparent, great-grandparent, aunt, great-aunt, uncle, great-uncle, stepparent, sibling, or step-sibling of the child.
(B) The relative is suitable to care for the child. In determining suitability, the court shall consider the relationship of the child and the relative and the relative's ability to:
(i) Provide a safe, secure, and stable environment.
(ii) Exercise proper and effective care and control of the child.
(iii) Protect the child from the custodial parent to the degree the court deems such protection necessary.
(iv) Support reunification efforts, if any, with the custodial parent.
(v) Consider providing legal permanence if reunification fails.
(C) In considering the suitability of a relative under this subdivision (3), the court may order the department to conduct an investigation and file a written report of its findings with the court. The court may place the child in the temporary custody of the department, pending such investigation.
(4) A temporary care order transferring temporary legal custody of the child to a relative who is not listed in subdivision (3)(A) of this subsection or a person with a significant relationship with the child, provided that the criteria in subdivision (3)(B) of this subsection are met. The court may make such orders as provided in subdivision (3)(C) of this subsection to determine suitability under this subdivision.
(5) A temporary care order transferring temporary legal custody of the child to the commissioner.
(c) If the court transfers legal custody of the child, the court shall issue a written temporary care order.
(1) The order shall include:
(A) a finding that remaining in the home is contrary to the child's welfare and the facts upon which that finding is based; and
(B) a finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home. If the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.
(2) The order may include other provisions as may be necessary for the protection and welfare of the child, such as:
(A) Establishing parent-child contact under such terms and conditions as are necessary for the protection of the child.
(B) Requiring the department to provide the child with services, if legal custody of the child has been transferred to the commissioner.
(C) Requiring the department to refer a parent for appropriate assessments and services, including a consideration of the needs of children and parents with disabilities, provided that the child's needs are given primary consideration.
(D) Requiring genetic testing if parentage of the child is at issue.
(E) Requiring the department to make diligent efforts to locate the noncustodial parent.
(F) Requiring the custodial parent to provide the department with names of all potential noncustodial parents and relatives of the child.
(G) Establishing protective supervision and requiring the department to make appropriate service referrals for the child and the family, if legal custody is transferred to an individual other than the commissioner.
(3) In his or her discretion, the commissioner may provide assistance and services to children and families to the extent that funds permit, notwithstanding subdivision (2)(B) of this subsection.
(d) If a party seeks to modify a temporary care order in order to transfer legal custody of a child from the commissioner to a relative or a person with a significant relationship with the child, the relative shall be entitled to preferential consideration under subdivision (b)(3) of this section, provided that a disposition order has not been issued and the motion is filed within 90 days of the date that legal custody was initially transferred to the commissioner. (Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.)