How to Apply for Temporary Custody in Texas

By Claire Gillespie

Updated January 08, 2020

Unrecognizable father with his son playing with cars


A temporary custody order in Texas is an emergency order that puts legal measures in place to keep minor children safe from harm. If a parent has evidence that his child is in danger with regards to the other parent, he can file for temporary custody without notifying that other parent. Under some circumstances, non-parents may also apply for temporary emergency custody in Texas.

Applying for a Temporary Custody Order

The first step towards getting temporary custody of a child in Texas is to file a custody petition. Depending on the circumstances of the case, this may be an establishment of paternity petition, a modification of an existing custody order or a petition relating to ongoing divorce proceedings. The petitioner should ask the court clerk for the appropriate temporary custody form and check which process should be followed at that particular court.

The petition must clearly spell out the danger to the child and why the judge should grant the order without notifying the other parent first. In other words, the petitioner needs to specify why this is an emergency situation.

A petition for emergency custody is essentially a request for a Temporary Restraining Order (TRO) against the custodial parent. This orders the parent to stay away from the child for the duration of the order, which is typically 20 days, although the petitioner can apply to the court for an extension.

Evidence for Emergency Custody in Texas

To get emergency temporary custody in Texas, the court requires proof that the child is in immediate danger. This could be due to child abandonment, physical abuse, sexual abuse, an extremely unsafe living environment, or drug or alcohol abuse by the parent. However, emotional or verbal abuse doesn't typically satisfy this requirement.

The petitioner should gather all evidence relating to the situation, such as pictures, text messages, videos, police reports and anything else that backs up her claim that the child is in immediate danger.

Timeframe for Temporary Custody Order

While there's no exact timeframe for a temporary custody order in Texas, the courts try to move as quickly as possible to ensure that the child comes to no harm. In some cases, the order will be granted on the same day it is filed. In others, the judge may take longer to consider the petition and supporting documents.

Even if a temporary custody order is granted, the petitioner must still prepare for a hearing shortly afterwards. This is necessary to decide on a more permanent custody arrangement, and it gives the other parent the opportunity to present her side of the case.

Application by Grandparent/Other Non-parent

If a grandparent or other non-parent wants temporary custody of a child in Texas, he can file a Suit Affecting the Parent-Child Relationship (SAPCR). However, he has the right to do so only if:

  • He has had actual care, control and possession of the child for at least six months ending not more than 90 days before the date he files the case, and he is not a foster parent; or
  • He has lived with the child and the child’s parent, guardian or conservator for at least six months ending not more than 90 days before the date he files the SAPCR, and the child’s parent, guardian or conservator has died; or
  • He is the foster parent of a child placed by the Department of Family & Protective Services who has been in his home for at least a year ending not more than 90 days before the date he filed the SAPCR; or
  • He is the child’s grandparent, great-grandparent, sister, brother, aunt, uncle, niece or nephew and both parents are dead, or both parents, the surviving parent or managing conservator agree that he can file the case, or the child’s present circumstances will significantly harm the child’s physical health or emotional development. 

The SAPCR process varies depending on whether the parents agree to the order, fail to participate with the court process (i.e., are served and do not file an answer or otherwise appear in court) or contest the case. The court clerk can provide guidance depending on the specific circumstances of each individual case.

Application for Temporary Guardianship

When parents are out of town, ill or otherwise unable to meet their parental duties, grandparents, aunts, uncles and other close relatives may voluntarily care for children. This does not require the court's approval, unless it affects current custody orders. The temporary guardianship authorization agreement needs only be notarized by the parent and the temporary guardian to be effective.