SB 1395: temporary custody without court order

PRIME SPONSOR: Senator Barto, LD 15


                JPS: DPA 8-1-0-0

DCS-Department of Child Safety
Amendments – BOLD and Stricken (Committee)


☐ Prop 105 (45 votes)	     ☐ Prop 108 (40 votes)      ☐ Emergency (40 votes)	☐ Fiscal NoteRelating to taking temporary custody of a child.


1.       Requires the court to find probable cause exists, instead of reasonable grounds, for the temporary removal of a child in specific circumstances.  (Sec 1)

2.       Applies an independent probable cause standard to taking a child's sibling into temporary custody.  (Sec 1)

3.       Replaces the current probable cause standard for taking a child into temporary custody without a court order, with a requirement that exigent circumstances exist. (Sec 1)

4.       Defines exigent circumstances as probable cause to believe that the child is likely to suffer serious harm before a court order could be obtained, and either:

a.       There is no less intrusive alternative that would reasonably and sufficiently protect the child; or

b.       The child is a suspected victim of a sexual abuse offense or an offense abuse involving serious physical injury that can only be diagnosed by a physician or health care provider with specific training in child abuse evaluation. (Sec 1)(JPS)

5.       Removes the consideration as to whether a parent is willing to participate in services when determining if a child should be taken into temporary custody. (Sec 1)

6.       Requires the physician or health care provider who evaluates a child due to suspected physical or sexual abuse to be licensed.  (Sec 1)

7.       States that a juvenile taken into temporary custody cannot be held at a police station, jail or lockup where adults or juveniles charged with crimes are detained. (Sec 1)

8.       Permits a law enforcement officer to use reasonable force to enter a place where the person subject to temporary removal is or is reasonably believed to be. (Sec 1)

9.       Makes conforming changes. (Sec 1)

Current Law

A.R.S. § 8-821 outlines the process for taking a child into temporary custody to protect the child from suffering abuse or neglect.  Laws 2017, Ch. 282 amended this section by providing the option for the temporary removal of a child without a court order.  Under this law, a child may be taken into temporary custody by a peace officer, child welfare investigator or child safety worker if it is clearly necessary because probable cause exists to believe that the child is:

·         A victim/imminent victim of abuse or neglect in the time it would take to obtain the court order;

·         Suffering serious physical/emotional injury;

·         Physically injured living on the premises where dangerous/narcotic drugs are being manufactured; or

·         Reported by DCS as missing at the risk of serious harm.

Statute requires the court, DCS worker or peace officer to consider the child's health and safety as a paramount concern in determining whether to take a child into temporary custody, along with whether the parent is willing to participate in services.  A child cannot be kept in temporary custody for more than 72 hours without the filing of a dependency petition (excluding Saturdays, Sundays and holidays).  Laws 2017, Ch. 282 will become effective on July 1, 2018.




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Fifty-third Legislature                  SB 1395

Second Regular Session                               Version 2: Caucus & COW


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