Request By:
Hon. William B. Mains
Northeast Kentucky Legal Services
P.O. Box 679
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; George Geoghegan, III, Assistant Deputy Attorney General
You have requested an opinion of this office in regard to whether or not a district court judge is required to hold a hearing following the issuance of a temporary custody order under KRS 208.080. KRS 208.080(2) permits a judge of the juvenile session of district court to issue an order giving temporary custody of a child to the court if the court determines it is in the child's best interest. Specifically, KRS 208.080(2) states:
If it appears to the court, by affidavit or by sworn testimony, that the child is in such condition or surroundings that he is being harmed or threatened with harm to such a degree that his best interest requires that his custody be immediately assumed by the court, the judge may sign an order giving temporary custody of the child to the court. As a part of such order, the court may request that the child shall be picked up by the peace officer serving the summons or by any other peace officer and placed as directed by the court. In any event, a copy of the temporary custody order shall be effective until the case is heard on its merits, or until modified by the court. As merits, or until modified by the court. As a result of such order, the child shall be placed in custody and care in a family home or other suitable facility provided for under KRS 208.130, or in a facility operated by the department if the department is willing to receive the child or in a facility operated by a licensed child-caring institution or agency, and held therein pending further disposition by the court.
This statute specifically limits the effectiveness of a temporary custody order. The order remains in effect only until the case is heard on the merits, or until it is modified by the court. Although KRS 208.080(2) gives the court discretion either to modify the temporary custody order or to allow it to remain in effect until the case is heard on the merits, it is the opinion of this office that due process requires a prompt hearing following the issuance of a temporary custody order for the purpose of determining whether that order should stand. At this hearing the court should make as detailed inquiry into the facts underlying the issuance of the temporary inquiry into the facts underlying the issuance of the temporary custody order to ascertain whether custodial conditions existing prior to the issuance of the order actually place the child in the position of being harmed or threatened with harm so as to justify the court's continuing custody. This hearing hearing required by should be separate from the adjudication hearing required by KRS 208.060(2) and KRS 208.080(2) and in no way alters the requirement of those statutes.
It must be noted that a new state statute, KRS 208B.070(2), which is to become effective July 15, 1984, requires an emergency custody hearing to be held within seventy-two (72) hours of removing the child from his or her parent or custodian.
We trust the above will be of assistance to you.