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.
Both parties in the custody dispute as well as their legal representatives participate in return hearings. Most jurisdictions also require that a permanent change of custody motion be filed along with the ex parte emergency motion. This requirement is intended to avoid a situation in which the court grants temporary custody, the matter is dropped, and the opposing parent loses custody and/or visitation rights. A permanent change of custody motion is based on the overall best interests of the child, and there is not a requirement to show immediate danger.
Emergency Custody Standing
In every state, an individual with standing has the right to seek emergency custody of a child under certain circumstances. A person with standing must be a legal parent or guardian at the time the motion is made. Any person without standing would have to file a complaint with social services, which would then investigate and determine if removal of the child is warranted.
So what about our concerned father? Should he keep his daughter for her protection? What about the warning from Child Protective Services about returning the girl on time? If the father has standing, then he has the right to file for emergency custody. Given the bruises and burn, it might be best if the father keeps his daughter, hires an attorney, and files for ex parte emergency custody as soon as possible. Although the father may be breaking the current custody order, returning the girl to her custodial parent or guardian might put the child at serious risk.
Lesson Summary
All right, let's take a moment to review what we've learned. If a child faces the threat of imminent, substantial bodily harm, or of being taken from the court's jurisdiction, then a party with standing, which is a person who has the right to seek emergency custody of a child under certain circumstances, can petition the court for an ex parte emergency custody order, in which a judge could legally and temporarily grant someone the right to keep their child until an investigation is performed and his suspicions are either confirmed or disproved. Ex parte hearings involve only the petitioning party and the judge, so if emergency custody is granted, a return hearing, sometimes called a 10-day hearing, must be held. The return hearing does not determine a final change of custody; it determines whether the emergency order should remain in place until the court holds a full hearing about the child's custody.
