Emergency Custody: Reasons & Motions

Lesson Transcript
Instructor: Kenneth Poortvliet

Kenneth has a JD, practiced law for over 10 years, and has taught criminal justice courses as a full-time instructor.

If a child is in immediate danger of serious harm, a legal parent or guardian can petition the court for emergency custody. In this lesson, we'll explore the requirements for filing a motion for emergency custody and the reasons that courts grant emergency custody. Updated: 08/05/2020

Basis for Emergency Custody

During a visitation weekend, a father notices a burn mark on the back and bruises on the neck and chest of his young daughter. In a panic, the father calls Child Protective Services. An agent tells the distraught father that the injuries could have many different causes and that, without more information or evidence, they can't take emergency steps to remove the child from her legal guardian. The agent also warns the father not to keep his daughter beyond the weekend because he would be in contempt of court.

Can anything be done? Like most people, the father probably feels helpless and out of options. But is that true?

Not necessarily. If abuse is suspected, the father can file for emergency custody, which would legally (though temporarily) grant him the right to keep his daughter until an investigation is performed and his suspicions are either confirmed or disproved.

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  • 0:04 Basis for Emergency Custody
  • 0:58 Seeking Emergency Custody
  • 2:41 Ex Parte Petition Requirements
  • 3:24 Emergency Custody Duration
  • 4:18 Emergency Custody Standing
  • 5:15 Lesson Summary
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Seeking Emergency Custody

In emergency cases, the need for immediate custody runs counter to the rules of notice and due process that typically exist with most legal disputes. The law accounts for such emergencies by allowing an ex parte hearing, which is a proceeding that occurs before a judge and outside the presence of the opposing party. A hearing involves presenting evidence to a judge who will make a decision on the issue.

Typically, the process for seeking emergency custody works like this: The non-custodial parent hires an attorney, who then drafts a motion, also known as a petition, for ex parte emergency custody. This request for sole, temporary custody is a drastic measure and must be based on facts that show the child is in imminent danger. In many states, only an attorney can petition a judge for emergency custody, while in other states, there are procedures and forms available for the petitioning parent to file pro se, which means without representation.

In every state, the motion must allege facts that support at least one of the following circumstances. The child faces an imminent risk of:

  • substantial bodily injury or death
  • sexual harm
  • extreme emotional harm
  • being taken from the jurisdiction, meaning the state where the child currently resides

If the motion is granted, the judge issues an immediate order granting temporary custody of the child. If the petition is denied, then the only remedy left is to file a motion for change of custody, which is typically based on facts that show negligence or other circumstances indicating that the child's general welfare is at risk.

Ex Parte Petition Requirements

Before most courts will consider an emergency custody petition, the following documents must be provided:

  • An information sheet with details about the minor child, the petitioning party and the attorney
  • A motion for ex parte emergency custody
  • The petitioner's affidavit, or sworn statement, that contains evidence of the allegations in the motion
  • A motion for permanent change of custody
  • A notice of a 10-day return hearing

In most states, if emergency custody is granted, the opposing custodial parent or guardian must be served a copy of the ex parte order, a notice for a 10-day return hearing, and a motion for permanent change of custody.

Emergency Custody Duration

The emergency order stands until another custody order is entered in the case. However, in most jurisdictions, a return hearing (many jurisdictions call it a 10-day hearing) must be held within ten days whereby the court will decide whether to continue the recently issued emergency custody order.

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