(a)(1) When application has been made for the removal of one or both parents as guardians or of any other guardian of the person of a minor child, or when an application has been made for the termination of the parental rights of any parties who may have parental rights with regard to any minor child, or when, in any proceeding the court has reasonable grounds to believe that any minor child has no guardian of his or her person, the court of probate in which the proceeding is pending may issue an order awarding temporary custody of the minor child to a person other than the parent or guardian, with or without the parent's or guardian's consent, but such order may only be issued in accordance with the provisions of this section. There shall be a rebuttable presumption that the awarding of temporary custody to a relative is in the best interests of such child or youth. This presumption may be rebutted by a preponderance of the evidence that such awarding of custody is not in the best interests of such child or youth. As used in this subsection and subsections (b) and (d) of this section, “relative” means a person related to the child by blood or marriage.

(2) In any proceeding under this section, any relative of the minor child may make a motion to intervene and the court shall grant such motion except for good cause shown. Upon the granting of such motion, such relative may appear by counsel or in person.

(b) In the case of a minor child in the custody of the parent or other guardian, no application for custody of such minor child may be granted ex parte, except in accordance with subdivision (2) of this subsection. In the case of a minor child in the custody of a person other than the parent or guardian, no application for custody may be granted ex parte, except in accordance with subdivisions (1) to (3), inclusive, of this subsection.

(1) An application for immediate temporary custody shall be accompanied by an affidavit made by the custodian of such minor child under penalty of false statement, stating the circumstances under which such custody was obtained, the length of time the affiant has had custody and specific facts which would justify the conclusion that determination cannot await the hearing required by subsection (c) of this section. Upon such application, the court may grant immediate temporary custody to the affiant, a relative, or some other suitable person if the court finds that: (A) The minor child was not taken or kept from the parent, parents or guardian, and (B) there is a substantial likelihood that the minor child will be removed from the jurisdiction prior to a hearing under subsection (c) of this section, or (C) to return the minor child to the parent, parents or guardian would place the minor child in circumstances which would result in serious physical illness or injury, or the threat thereof, or imminent physical danger prior to a hearing under subsection (c) of this section.

(2) In the case of a minor child who is hospitalized as a result of serious physical illness or serious physical injury, an application for immediate temporary custody shall contain a certificate signed by two physicians licensed to practice medicine in this state stating that (A) the minor child is in need of immediate medical or surgical treatment, the delay of which would be life threatening, (B) the parent, parents or guardian of the minor child refuses or is unable to consent to such treatment, and (C) determination of the need for temporary custody cannot await notice of hearing. Upon such application, the court may grant immediate temporary custody to a relative or some other suitable person if it finds that (i) a minor child has suffered from serious physical illness or serious physical injury and is in need of immediate medical or surgical treatment, (ii) the parent, parents or guardian refuses to consent to such treatment, and (iii) to delay such treatment would be life threatening.

(3) If an order of temporary custody is issued ex parte, notice of the hearing required by subsection (c) of this section shall be given promptly, and the hearing shall be held not later than five business days after the date of such ex parte order of temporary custody, provided the respondent shall be entitled to continuance upon request. Upon the issuance of an order granting temporary custody of the minor child to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the minor child with his or her parent, parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the minor child's best interests, including the minor child's health and safety. Upon issuance of an ex parte order of temporary custody, the court shall promptly notify the Commissioner of Children and Families, who shall cause an investigation to be made forthwith, in accordance with section 17a-101g, and shall present the commissioner's report to the court at the hearing on the application for temporary custody. The hearing on an ex parte order of temporary custody shall not be postponed, except with the consent of the respondent, or, if notice cannot be given as required by this section, a postponement may be ordered by the court for the purpose of a further order of notice.

(c) Except as provided in subsection (b) of this section, upon receipt of an application for temporary custody under this section, the court shall promptly set the time and place for a hearing to be held on such application. The court shall order notice of the hearing on temporary custody to be given, at least five days prior to the date of the hearing, to the Commissioner of Children and Families by first class mail and to both parents and to the minor child, if over twelve years of age, by personal service or service at the parent's usual place of abode or the minor's usual place of abode, as the case may be, in accordance with section 52-50, except that in lieu of personal service on, or service at the usual place of abode of, a parent or the father of a minor child born out of wedlock who is either an applicant or who signs under penalty of false statement a written waiver of such service on a form provided by the Probate Court Administrator, the court may order notice to be given by first class mail at least five days prior to the date of the hearing. If the whereabouts of the parents are unknown, or if such delivery cannot reasonably be effected, then notice shall be ordered to be given by publication. Such notice may be combined with the notice under section 45a-609 or with the notice required under section 45a-716. If the parents are not residents of the state or are absent from the state, the court shall order notice to be given by first class mail at least five days prior to the date of the hearing. If the whereabouts of the parents are unknown, or if delivery cannot reasonably be effected, the court may order notice to be given by publication. Any notice by publication under this subsection shall be in a newspaper which has a circulation at the last-known place of residence of the parents. In either case, such notice shall be given at least five days prior to the date of the hearing, except in the case of notice of a hearing on immediate temporary custody under subsection (b) of this section. If the applicant alleges that the whereabouts of a respondent are unknown, such allegation shall be made under penalty of false statement and shall also state the last-known address of the respondent and the efforts which have been made by the applicant to obtain a current address. The applicant shall have the burden of ascertaining the names and addresses of all parties in interest and of proving to the satisfaction of the court that the applicant used all proper diligence to discover such names and addresses. Except in the case of newspaper notice, such notice shall include: (1) The time and place of the hearing, (2) a copy of the application for removal or application for termination of parental rights, (3) a copy of the motion for temporary custody, (4) any affidavit or verified petition filed with the motion for temporary custody, (5) any other documents filed by the applicant, (6) any other orders or notices made by the court of probate, and (7) any request for investigation by the Department of Children and Families or any other person or agency. Such notice shall also inform the respondent of the right to have an attorney represent the respondent and, if the respondent is unable to obtain or pay for an attorney, the respondent may request the court of probate to appoint an attorney to represent the respondent. Newspaper notice shall include such facts as the court may direct.

(d) If, after hearing, the court finds by a fair preponderance of the evidence (1) that the parent or other guardian has performed acts of omission or commission as set forth in section 45a-610, and (2) that, because of such acts, the minor child is suffering from serious physical illness or serious physical injury, or the immediate threat thereof, or is in immediate physical danger, so as to require that temporary custody be granted, the court may order the custody of the minor child to be given to one of the following, taking into consideration the standards set forth in section 45a-617 and subsection (a) of this section: (A) A relative of such minor child; (B) the Commissioner of Children and Families; (C) the board of managers of any child-caring institution or organization; (D) any children's home or similar institution licensed or approved by the Commissioner of Children and Families; or (E) any other person. The fact that an order of temporary custody may have been issued ex parte under subsection (b) of this section shall be of no weight in a hearing held under this subsection. The burden of proof shall remain upon the applicant to establish the applicant's case. The court may issue the order without taking into consideration the standards set forth in this section and section 45a-610 if the parent or other guardian consents to the temporary removal of the minor child, or the court finds that the minor child has no guardian of his or her person. Upon the issuance of an order giving custody of the minor child to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the minor child with his or her parent, parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the minor child's best interests, including the minor child's health and safety.

(e) Such order for temporary custody shall be effective until disposition of the application for removal of parents or guardians as guardian or for termination of parental rights or until a guardian is appointed for a minor child who has no guardian, unless modified or terminated by the court of probate. Any respondent, temporary custodian or attorney for the minor child may petition the court of probate issuing such order at any time for modification or revocation thereof, and such court shall set a hearing upon receipt of such petition in the same manner as subsection (c) of this section. If the court finds after such hearing that the conditions upon which it based its order for temporary custody no longer exist, and that the conditions set forth in subsection (b) of this section do not exist, then the order shall be revoked and the minor child shall be returned to the custody of the parent or guardian.

(f) A copy of any order issued under this section shall be mailed immediately to the last-known address of the parent or other guardian from whose custody the minor child has been removed.

(1949 Rev., S. 6851; 1963, P.A. 151; P.A. 74-164, S. 16, 20; P.A. 75-420, S. 4, 6; P.A. 77-21; 77-614, S. 521, 610; P.A. 79-460, S. 7; P.A. 83-481, S. 1; P.A. 84-294, S. 2; P.A. 86-264, S. 1; P.A. 93-91, S. 1, 2; P.A. 96-246, S. 31; P.A. 99-84, S. 23; P.A. 00-75, S. 5; May 9 Sp. Sess. P.A. 02-7, S. 31; P.A. 07-184, S. 1; P.A. 09-185, S. 4.)

History: 1963 act authorized court to enforce order by warrant to proper officer “commanding him to take possession of the child and to deliver such child into the custody of the person, board, home or institution designated by said order”; P.A. 74-164 specified that provisions apply in cases where application has been made to terminate parental rights and described custodial institutions simply as those licensed or approved by welfare commissioner deleting reference to their incorporation by act of general assembly or organization under laws relating to corporations without capital stock, “whose objects and purposes are charitable”; P.A. 75-420 replaced welfare commissioner with commissioner of social services; P.A. 77-21 specified applicability of provisions in cases where court has reasonable grounds to believe that a minor child has no guardian of his person; P.A. 77-614 replaced social services commissioner with commissioner of human resources, effective January 1, 1979; P.A. 79-460 divided section into Subsecs., added provisions detailing grounds for issuance of order awarding temporary custody, replaced commissioner of human resources with commissioner of children and youth services, deleted previous provisions re court orders and added new provisions incorporated as Subsecs. (c) and (d); P.A. 83-481 deleted former Subsec. (c) and added provisions of Subsecs. (b) to (e), inclusive, re applications for temporary custody and ex parte issuance of order of temporary custody; P.A. 84-294 amended Subsec. (a) by deleting provision re restrictions on awarding temporary custody to person other than parent or guardian and added “but such order may only be issued in accordance with the provisions of this section”, amended Subsec. (b)(3) by changing “immediately” to “promptly” and adding provision permitting postponement to be ordered by the court for the purpose of a further order of notice, amended Subsec. (c) by adding exception to notice requirement in the case of hearing on immediate temporary custody under Subsec. (b) of section, and amended Subsec. (e) by adding provision re duration of effectiveness of order of temporary custody until guardian is appointed for child who has no guardian; P.A. 86-264 amended Subsec. (c) by changing age of minor from 14 to 12 years of age, permitting notice by certified mail, return receipt requested, to parent or father of child born out of wedlock who is petitioner or who waives personal service, requiring notice by certified mail, return receipt requested, to parents who are nonresidents or absent from the state and permitting notice by publication if delivery by certified mail cannot be reasonably effected; Sec. 45-44 transferred to Sec. 45a-607 in 1991; P.A. 93-91 substituted commissioner and department of children and families for commissioner and department of children and youth services, effective July 1, 1993; (Revisor's note: In 1995 the indicators (1), (2), (3) and (4) in Subsec. (d)(2) were changed editorially by the Revisors to (A), (B), (C) and (D) respectively for consistency with statutory usage); P.A. 96-246 amended Subsec. (b)(3) by replacing reference to Sec. 17a-101 with Sec. 17a-101g; P.A. 99-84 amended Subsec. (c) by deleting “oath” and inserting “penalty of false statement”; P.A. 00-75 amended Subsec. (c) by adding provision requiring notice of hearing to the Commissioner of Children and Families by regular mail; May 9 Sp. Sess. P.A. 02-7 amended Subsec. (b)(3) to add provision requiring the court upon issuance of an order granting temporary custody of the minor child to the Commissioner of Children and Families, or not later than 60 days thereafter, to make a determination whether the Department of Children and Families made reasonable efforts to keep the minor child with his or her parent, parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible considering the best interests of the minor child, amended Subsec. (d) to add provision requiring the court upon issuance of an order giving custody of the minor child to the Commissioner of Children and Families, or not later than 60 days thereafter, to make a determination whether the Department of Children and Families made reasonable efforts to keep the minor child with his or her parent, parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible considering the best interests of the minor child, and made technical changes throughout section, effective August 15, 2002; P.A. 07-184 amended Subsec. (c) to substitute “first class mail” for “regular mail” and “certified mail”, rewrite provisions re service and make technical changes; P.A. 09-185 amended Subsec. (a) by designating existing provisions as Subdiv. (1), amending same by defining “relative” and adding provision re court applying rebuttable presumption concerning placement of a child with a relative in issuing award of temporary custody, and adding Subdiv. (2) re relative's motion to intervene, amended Subsec. (b) by inserting references to the granting of temporary custody to a relative and making a technical change, and amended Subsec. (d) by inserting reference to Subsec. (a) and expanding persons to whom court may award custody to include a relative, effective June 29, 2009.

See Sec. 45a-242 re replacement of fiduciary.

Annotations to former section 45-44:

Cited. 193 C. 393. Distinguished application of section from operation of Sec. 46b-129. 195 C. 344.

Annotation to present section:

Parent-child relationship not an exceptional circumstance allowing constitutional claim to be raised for the first time on appeal. 47 CA 105.