Order of Temporary Custody

If DCF is planning to file an abuse or neglect petition, or has already filed one, and determines that your child is in immediate physical danger from his surroundings, it will seize the child on a 96-hour hold. That can be done under the authority of a DCF program supervisor. DCF will then normally show up at your home, supported by several police officers, and take the child or children. In some cases, DCF takes the child right from the school and notifies you after the fact.

During the next four days, DCF almost always files a Motion for an Order of Temporary Custody (OTC). The judge usually grants the motion. Thus the child will not be returned to you until you get a further court order.

You are then contesting two matters in Juvenile Court: the OTC and the neglect petition. Even if the OTC is vacated, the neglect petition remains.

Getting your child back after removal can be a lengthy and difficult process, and is best undertaken with the aid of an experienced attorney.

Our goal is to make sure that the process of reunification does not get sidetracked, so that you can be reunited with your child as soon as possible.

IMMEDIATE PHYSICAL DANGER
The obvious purpose of an OTC is to protect a child who is in immediate physical danger. For example, suppose that DCF has credible evidence that the parents are running heroin parties while young children are present. Or that the parent intentionally burned the child with a cigarette. Or that the parents went on vacation and left the child with a known molester. Under these circumstances, everyone would agree that the child should be seized immediately.

It is similar to a temporary restraining order (TRO) in domestic matters. The woman files a sworn affidavit that her husband or boy friend is physically abusing her. The Judge issues a TRO. Of course, it might not be true, so the other party gets to come to Court within ten days and tell his side of the story. Meantime, since the sworn affidavit is serious and appears to be credible, the temporary order is granted.

Similarly, an OTC is temporary. The child is seized based upon a sworn affidavit, but you get to come to court and tell your side of the story.

The reality, however, is a little different; for several reasons.

PROBLEMS WITH OTC’S

1. DCF has lately begun to file OTC’s in non-emergency cases. It has gotten so bad that I sometimes think that, if an OTC is not filed, it is ipso facto evidence that the neglect case wasn’t serious in the first place.
   
   For example, I recently had a case in which the boy friend made threats. He was a big-mouth, and everyone who knew him realized that the threats were not serious. There was substantial evidence that he was, in fact, very good to the children. However, even though he got drunk and went to a 90-day dryout, the children were taken from the mother on an OTC. The reasoning: she had failed to protect them from him, and thus they were in immediate physical danger.
   
   In another recent case, the mother admitted to a heroin problem. The father moved out, and took the child to his grandmother’s house. The child was taken from the father also on an OTC. The reasoning: the father must have known that the mother had a drug problem and “enabled” her, even though there was credible evidence that he had not. There certainly was no evidence, other than speculation, that he had.
   
   Again, OTC’s are necessary in many cases. However, DCF is using them in unnecessary cases, and often gets away with it.
   
   
2. DCF exaggerates its affidavits. An affidavit is a document sworn to, and subject to penalty of false statement. DCF often loads these affidavits with every kind of unverified hearsay imaginable. They get away with it by saying that “they had credible information”. Sometimes they do, and sometimes it is nothing more than a phone call from a jealous ex-friend or neighbor. The problem is that it is extremely difficult to prove a negative. Almost no Judge will return a child while the affidavit allegations are in place; and disproving them is often lengthy and difficult. Unlike on TV, a hero doesn’t suddenly show up to disprove what was written.
   
   In the “heroin problem” case mentioned above, DCF added that the father himself was a drug dealer fronting for his boss, was a drug abuser himself, and had verbally abused the mother. All of these accusations were made without hard evidence; but as one Judge put it, “Once the allegation is made, a Pandora’s box is opened.”
   
   This is not an indictment of investigative social workers in general. However, every DCF defense lawyer will tell you the same: DCF exaggerates its affidavits.

It is safe to say that most Americans never heard of OTC’s until the Texas polygamy case. In that case, Texas took nearly 500 children away from their community on flimsy evidence, which turned out to have been fabricated. There was no pretext of a true investigation.

The real motive of the Texas authorities was to gather evidence against a group whose religious beliefs it opposed. Here, the extensive publicity succeeded in getting the children returned. Other kids have not been so fortunate. And even here, the trauma inflicted on the kids by a SWAT-like raid against their families cannot be known with certainty.

Good news: I notice that, lately, Judges are more reluctant to grant OTC motions filed by DCF. The reason seems to be that DCF has cried wolf too often, and Judges are getting suspicious. OTC’s are supposed to be filed in genuine cases of imminent danger to children, not simply whenever DCF has concerns. Nevertheless, the OTC remains a potent weapon in DCF’s arsenal.

3. After an OTC, you come to court and can request a 10-day hearing on the merits. I often advise clients to not exercise that option. It is sometimes impossible to gather the necessary evidence in 10 days, it is extremely expensive, and your chances of winning in any event are not great. It is better to save your money, take your time gathering evidence and engaging in services, and trying to get the child back later.

It is possible, however, to request a delay of the 10-day hearing. For example, you may ask for an extra 2-4 weeks or so to get your case ready. The problem is that you have no guarantee that the Judge will grant the delay; but often he will.

It is best to discuss specific details with your attorney. OTC’s are unpleasant things, to say the least; and our office uses its best efforts to help clients.

4. Unexplained fractures present an almost-automatic case for OTC’s. The child has a serious injury, the parents are unable to explain it, and a state-contracted pediatrician specializing in child abuse can always be found to supply damaging testimony.

   The parents are in a serious bind. They are up against evidence that they can almost never contradict. It is especially serious if the parents have any prior DCF history whatsoever.

Please see our article: The Problem of Unexplained Fractures.

If your child is taken on an OTC, it is usually desirable to see that the child is placed with relatives. See: Relatives Seeking Placement.

CONCLUSION

OTC is a serious business. The odds are stacked against you.

Do not, under any circumstances, argue with the social worker. That will only get you written up as uncooperative or threatening, and will make it worse.

People understandably believe that if they can convince the social worker, all will be well. DCF does not operate that way. A supervisor makes the decision, and the field social worker communicates it and takes the heat.

Many people try to defend themselves against DCF. That seldom makes sense; but in an OTC, it makes no sense at all.