Filing a petition, or initial pleading, with a court initiates a child protection proceeding. The State or county child protective services (CPS) agency is the petitioner, and the parents, caretakers, or child may be referred to as respondents. As the petition is a civil, rather than criminal, matter, they are not “defendants,” and the petition does not “charge” them with child abuse or neglect. Criminal charges related to abuse or neglect may be filed but are usually separate from custody hearings.
The petition will contain the essential elements of the alleged child maltreatment or need for the child to be placed in foster care. In addition, the pleading must include information regarding efforts the agency has made to prevent placement. It does not need to contain all the facts, but should include enough to establish the court’s jurisdiction. Federal law does not govern State and local practices regarding the filing of petitions, emergency removals, and prior authorization of removals by judicial officers, so these vary widely among and within States.
Once it receives the petition, the court will have three options:
- Grant ex parte custody
- Schedule an initial hearing before removal
- Deny the petition
Many removals are authorized by ex parte (which means "on behalf of or involving only one party to a legal matter and in the absence of and usually without notice to the other party") orders, and the first hearing is conducted after the removal has occurred. The courts have the option of granting the ex parte request or denying it and scheduling an initial hearing to consider the issue of placement more fully. In deciding whether to grant the removal application ex parte, the judge will determine the risk of harm to the child if removal is not authorized and what efforts the CPS agency has made or could make to avoid removal, address the threats to the child’s safety, or reduce the risk.
In some States, the petitions do not have to include a request that the child be removed. It sometimes may be useful to file a petition without asking for removal, such as when maltreatment is substantiated and removal does not appear necessary, but the parents are resistant to the CPS agency's intervention. In some States, the court may enforce or mandate parental cooperation.
When immediate removal of a child is dictated by emergency circumstances, however, some CPS agencies can remove the child, then promptly file a petition and obtain judicial approval for the removal. The States’ laws set time limits for obtaining retroactive approval for the removal. Some courts have procedures in place to ensure round-the-clock agency access to a judge with the expertise and authority to respond to requests for removal. The CPS caseworker needs to ensure that the timely filing of the petition occurs immediately after emergency removals.