Emergency Custody Orders in Travis County: When Courts Act Fast
Most custody proceedings in Travis County move at the pace of a normal civil case — filing, service, response deadlines, discovery, divorce mediation, and eventually a hearing or trial. That pace exists for good reason, but it does not work when a child is facing an immediate risk that cannot wait for the normal process to play out. Texas law provides a separate mechanism for exactly these situations, and understanding both what it allows and what it requires is critical for anyone facing a genuine emergency involving a child.
What Qualifies as an Emergency
Texas Family Code § 105.001 allows a court to render a temporary restraining order or attachment of a child without notice to the other party, and to render other temporary orders for the safety and welfare of the child, if the court finds from the pleadings or supporting affidavit that there is a serious immediate question concerning the welfare of the child.
That standard — a serious immediate question concerning the welfare of the child — is a meaningfully higher bar than the standard for an ordinary custody modification or even an ordinary temporary order in a pending case. Courts in Travis County see this provision invoked in situations involving credible evidence of family violence directed at the child or in the child’s presence, evidence that a parent intends to remove the child from the jurisdiction in a way that would interfere with the other parent’s rights, evidence of abuse or neglect that creates an immediate danger, and situations involving a parent’s substance abuse or mental health crisis that creates an immediate safety risk to the child.
What an emergency order is not for is a genuine but non-emergency disagreement about parenting decisions, a dispute over a missed exchange or a scheduling conflict, or general dissatisfaction with how the other parent is exercising their existing rights. The “serious immediate question” standard exists precisely to distinguish situations requiring the court to act before the other side can even be heard from situations that, however frustrating, can proceed through the normal process with notice to both parties.
Ex Parte Relief: Acting Without Notice to the Other Parent
The defining feature of an emergency order under § 105.001 is that it can be granted ex parte — without prior notice to the other parent and without that parent having an opportunity to respond before the order takes effect. This is an extraordinary departure from the normal due process expectation that a party gets notice and an opportunity to be heard before a court acts against their interests.
Because of how significant this departure is, Texas courts do not grant ex parte relief lightly, and the supporting affidavit matters enormously. The affidavit needs to set out specific, factual information establishing the immediate danger — not general characterizations or conclusions, but the actual facts: what happened, when, who was involved, and why the situation creates an immediate risk that cannot wait for the other parent to be notified and heard.
An order granted ex parte is not the end of the process. Due process requires that the other parent receive notice and an opportunity for a hearing promptly after an ex parte order is entered. Texas Family Code § 105.001(h) requires that a temporary restraining order without notice be set for a hearing within a specified period — and the party who obtained the ex parte order has to be prepared to support it with evidence at that hearing, in the presence of the other parent, who has the opportunity to contest it.
This structure means an emergency order is a starting point, not a final resolution. It addresses the immediate situation while ensuring both parties get their day in court relatively quickly afterward.
Emergency Protective Orders in Family Violence Cases
A related but distinct mechanism applies specifically in the criminal context. When a family violence arrest occurs in Austin, Texas Code of Criminal Procedure Art. 17.292 requires a magistrate to consider issuing an emergency protective order, which can include provisions removing the offender from a shared residence and restricting contact with the alleged victim and any children. This emergency protective order arises out of the criminal case, operates on its own timeline — typically 31 to 91 days — and is a separate mechanism from the civil emergency custody order under § 105.001, though the two can intersect when a family violence incident also triggers a SAPCR emergency filing.
Families dealing with an emergency custody situation that arises out of a family violence incident may be navigating both the criminal case’s protective order and a civil SAPCR emergency filing simultaneously, and understanding how these two tracks relate to each other — including what each one does and does not address — is part of handling these situations effectively.
What Happens to Possession and Access During an Emergency Order
An emergency order under § 105.001 can suspend or modify an existing possession schedule on a temporary basis — for example, suspending a parent’s possession periods entirely, requiring supervised visitation, or restricting a parent’s access pending the prompt hearing required after an ex parte order. The specific relief depends on the nature of the emergency and what the supporting affidavit establishes.
It is important to understand that this is temporary relief addressing the immediate situation — it is not a modification of the underlying custody order in the sense discussed under Texas Family Code § 156.101. The emergency order operates alongside the existing order during the period it is in effect, and what happens longer-term depends on what is established at the prompt hearing and, if the situation warrants it, through a subsequent modification proceeding addressing the underlying order on a more permanent basis.
When a Parent Fears the Other Parent Will Flee with the Child
One of the specific situations § 105.001 addresses is the risk that a parent will remove a child from the jurisdiction — or from the country — in a way that would interfere with the other parent’s custodial rights or make it difficult or impossible to recover the child. When there is credible evidence that this risk is real and imminent, courts can issue orders restricting a child’s travel, requiring surrender of a child’s passport, and in serious cases involving international flight risk, additional measures addressing the specific circumstances.
These cases require moving quickly and with specific, documented evidence of the flight risk — statements indicating intent to leave, evidence of travel arrangements already made, a history of similar conduct, or other concrete indicators. A general fear that a parent “might” leave, without specific supporting facts, does not meet the standard for ex parte relief, though it may be relevant to a request for an expedited hearing with notice.
What CPS Involvement Adds to the Picture
When the Texas Department of Family and Protective Services becomes involved due to a report of abuse or neglect, the agency has its own emergency removal authority under Texas Family Code Chapter 262, which operates separately from a private party’s emergency motion under § 105.001. A CPS removal involves the state taking custody of a child and initiating its own court proceeding, with its own timeline for hearings — Texas Family Code § 262.201 requires a full adversary hearing within 14 days of removal.
A parent involved in a private custody case who also has CPS involvement is navigating two separate proceedings that can affect each other — findings or evidence developed in one can be relevant to the other, and the timelines and requirements of each are distinct. This is a situation where understanding how the two systems interact, and ensuring that a parent’s position is properly represented in both, matters significantly.
The Hearing After an Emergency Order
The hearing that follows an ex parte emergency order is where the order either gets continued, modified, or dissolved based on evidence presented with both parties present. This hearing is the other parent’s opportunity to respond to what was alleged in the affidavit that supported the ex parte order — and preparation for this hearing, on both sides, matters significantly.
For the parent who obtained the ex parte order, the hearing requires being prepared to substantiate the emergency with evidence beyond the initial affidavit — witnesses, documentation, and a clear presentation of why the relief granted should continue. For the parent responding to an ex parte order entered without their input, the hearing is the first opportunity to present their side, and a well-prepared response can result in the order being significantly narrowed or dissolved if the evidence does not support the emergency characterization.
Why These Cases Require Immediate Action
Emergency custody situations are, by definition, time-sensitive — both in terms of the underlying safety concern and in terms of the legal process itself. A parent who believes a genuine emergency exists needs to act quickly to get the matter before the court, with a properly prepared affidavit that meets the “serious immediate question” standard. A parent who is on the receiving end of an ex parte order needs to act quickly to prepare for the prompt hearing that follows.
In both directions, the time pressure is real, and the quality of what is presented to the court — whether in the initial affidavit or at the subsequent hearing — has an outsized effect on the outcome precisely because the court is being asked to act, or has already acted, on an expedited basis with limited information.
Barton & Associates handles emergency custody situations throughout Travis County from our Austin office, including both seeking emergency relief when a child’s safety is genuinely at risk and responding to ex parte orders on behalf of parents who need to be heard.
If you are facing an emergency custody situation in Austin, call 512-THE-FIRM (843-3476) or use the Schedule a Free Consultation form on our website. These situations require immediate attention, and the sooner an attorney is involved, the better positioned you are — whether you are seeking emergency relief or responding to it.
