I missed it too. But parental rights are constitutional rights in our country and the courts have to tread very lightly when dealing with them. Suspicion that someone may have committed a serious crime is not always/usually enough unless the crime has to do with the abuse of children.
If they can't provide evidence that he is neglecting or putting the kids in harm's way, the judge's hands are somewhat tied. It's scary because he or she knows that if true, he could kill the kids or use them as hostages. But until there is concrete proof of his involvement, the judge is wary of issuing an appealable order.
Comparing it to the Susan Powell case, child *advertiser censored*, essentially, was found in the house where the kids were. The grandfather they were living with was arrested for child *advertiser censored* and voyeurism. The father has no job, no means of support and has not been cooperative with police at all. Also, the story he gave about where he was with the kids when Susan went missing is one that shows he puts the children's welfare second.
We need those facts here. What we do have, Dale's criminal record, for example, was not used to bar him from visitation in Michelle's case against him so it is hard to suddenly claim that it makes a difference now (although I would certainly argue that it does). But that past, coupled with suspicion now, needs to be anchored to more concrete evidence of his involvement and/or evidence that the children are in immediate harm's way.
If there was evidence that he had ever been suicidal in the past, that would help, for example. I think his battery arrests and the one restraining order from Michelle, though, along with the current situation, could be massaged by a creative judge but it is a fine line and a real stretch. I have no doubt that the judge was very nervous making his or her decision but in emergency hearings, the standard of proof is higher than in regular custody proceedings. So, the judge is not looking at merely the best interests of the children, but at whether there is a current and definable emergency justifying their removal.
We see what's going on as that emergency. Courts usually do not.