CHILD CUSTODY · EMERGENCY · May 2025
One of the most urgent calls an attorney receives is from a parent who has just discovered — or long suspected — that their co-parent has a substance abuse problem and their child is in that person's care. Substance abuse by a parent is one of the most common grounds for an emergency custody order in Sacramento, and California courts take it very seriously. Here is what you need to know about your options and what evidence the court will require.
When Courts Will Grant Emergency Custody for Substance Abuse
California courts can issue emergency ex parte custody orders — orders made without advance notice to the other parent — when a child faces immediate risk of physical harm. Substance abuse qualifies when it creates an immediate safety risk to the child. This means the standard is not simply "my ex drinks" or "I think they use marijuana." The court needs evidence that the substance abuse is active, that it impairs the parent's ability to safely care for the child, and that the child is currently in or imminently at risk of harm as a result. A parent who struggled with addiction three years ago but has been in stable recovery will not typically meet this threshold. A parent who drove drunk with the child in the car last week, who is currently in active addiction with the child present in their home, or whose substance abuse is severe enough that they cannot reliably care for the child — these situations can and do justify emergency orders.
Evidence That Supports an Emergency Custody Motion
The strength of your emergency custody motion depends entirely on the evidence you can present. Police reports from incidents where the other parent was impaired while caring for the child carry significant weight. DUI arrests or convictions, particularly recent ones, are powerful evidence. Screenshots of the other parent's social media showing drug or alcohol use, especially when the child is present, are admissible. Statements from the child's school or childcare provider about behavioral changes or about the parent appearing impaired at drop-off or pickup can support your motion. Your own eyewitness account of specific incidents — with dates, times, and details — is necessary. If possible, a positive drug test result from a recent law enforcement contact or voluntary test is among the strongest evidence you can present. The more recent and specific the evidence, the more persuasive it will be.
How to File for an Emergency Custody Order in Sacramento
Emergency custody motions are filed at Sacramento Superior Court using Judicial Council Form FL-300 (Request for Order) along with a detailed declaration explaining the emergency. The declaration must be specific — it must describe actual incidents, actual observations, and actual risk to the child, not general concerns or suspicions. Once filed, a judge reviews the papers and can issue a temporary emergency order the same day, granting you temporary custody while a noticed hearing is set, typically within 20 to 25 days. At that hearing, both parties appear and the court makes a longer-term custody determination. Attorney Sarkovich can prepare and file an emergency custody motion the same day you call — reach him at (916) 545-5036.
Drug Testing in Custody Cases
If substance abuse is an issue in your custody case, Sacramento courts can order drug testing as part of the custody proceedings. Courts may order random drug testing through a certified testing facility, hair follicle testing (which can detect use over the past 90 days), and regular testing as a condition of maintaining or expanding custody. A parent who refuses court-ordered testing, or who tests positive repeatedly, will face significant adverse consequences in the custody case — up to and including suspension of custody or restriction to supervised visitation only. Conversely, a parent who submits to testing voluntarily and tests clean over a sustained period can use that evidence to demonstrate fitness as a parent.
The Intersection of Substance Abuse and Domestic Violence
Substance abuse and domestic violence frequently co-occur, and Sacramento courts recognize this. If the other parent's substance abuse is accompanied by domestic violence — which is common, as intoxication often escalates abusive behavior — you may have grounds for both an emergency custody order and a domestic violence restraining order simultaneously. Pursuing both through the same attorney, in coordinated proceedings, is typically the most effective approach. Under Family Code Section 3044, if there is a finding of domestic violence in addition to the substance abuse, the presumption against awarding custody to that parent is significantly strengthened. Do not wait if your child is at risk — call (916) 545-5036 for an emergency consultation.