Rule 3.963.Acquiring Physical Custody of Child

MCR 3.963 governs the moment a child protective case turns physical — when someone takes a child out of the home. The rule describes two routes into protective custody, one that runs through an officer acting on the scene and one that runs through a court order, and it attaches notice and paperwork duties to both.

Removal without a court order

Subrule (A)(1) lets an officer remove a child from the child's surroundings after investigation, on reasonable grounds to believe that the child is at substantial risk of harm or is in surroundings that present an imminent risk of harm, and that immediate removal is necessary to protect the child's health and safety. A narrower test governs an Indian child who resides or is domiciled on a reservation but is temporarily located off it. There the officer may take the child into protective custody only when necessary to prevent imminent physical damage or harm.

Two duties follow at once. Subrule (A)(2) requires the officer to notify the Department of Health and Human Services immediately, and it forbids holding the child in a detention facility while the department is on its way. Under subrule (A)(3), if the child is not released, the department must immediately contact the designated judge or referee described in subrule (D) to seek an ex parte placement order.

Court-ordered custody

Subrule (B)(1) lets the court authorize a child protective services worker, an officer, or another suitable person to take a child into protective custody. It takes a petition or affidavit of facts, reasonable cause to believe that all five listed conditions exist, and specific findings of fact. The conditions are risk of harm making immediate removal necessary, circumstances warranting an order pending a hearing under MCR 3.965 or MCR 3.974(C), reasonable efforts to prevent the need for removal, the absence of any other reasonably available remedy, and a finding that continuing to reside in the home is contrary to the child's welfare. Subrule (B)(2) allows the order to authorize entry onto specified premises.

Subrule (B)(1)(a) carries its own rule for an Indian child who resides or is domiciled on a reservation but is temporarily located off it. That child is subject to the exclusive jurisdiction of the tribal court, though the state court may still enter a protective custody order when it is necessary to prevent imminent physical damage or harm.

Before the hearing, subrule (B)(3) puts three questions in front of the court: whether an immediate or extended family member can take the child, whether there has been a central registry clearance, and whether a criminal history check has been started.

The ex parte placement order

Subrule (B)(4) divides the authority to place. On a petition or affidavit of facts, a judge who finds all of the factors in subrule (B)(1)(a) through (e) may issue a placement order. A referee who finds those same factors may issue only an interim placement order pending the preliminary hearing. Either order carries specific findings of fact and is communicated to the department.

Notice and the custody statement

Subrule (C) is a checklist for whoever holds the child. That person must attempt notice to the parent, guardian, or legal custodian immediately, give the date, time, and place of the preliminary or emergency removal hearing, bring the child to court or contact the court for placement instructions, make sure the petition is prepared and submitted, and file a custody statement. The statement needs a detailed account of the circumstances that led to the emergency removal and the names of the people notified with the times of notification, or the reason no notice was given.

The designated court contact

Subrule (D)(1) applies whenever the department seeks a placement order for a child in protective custody under subrule (A) or (B): the department contacts a judge or referee the court has designated for that purpose. Subrule (D)(2) covers the closed courthouse. If the court is closed, the designated judge or referee may issue an ex parte order for placement on receipt of a petition or affidavit of facts. That order goes in writing to the appropriate county department office and is filed with the court the next business day.