What is Required for Emergency Custody?

When it comes to the safety of your child, parents will do whatever is necessary.  Substance abuse, verbal abuse, domestic violence and related behaviors by a co-parent all have a detrimental effect on children and in some scenarios need to be addressed immediately  Unfortunately, family court dockets in many counties may not allow you to get in front of a judge in a timely fashion.

An emergency custody order can provide an immediate remedy in extreme circumstances where the safety of your child is at risk.  Understanding the grounds for emergency custody, the questions a judge will consider, and local procedures is essential for pro-se litigants and attorneys.

Grounds for Emergency Custody

In order to obtain an order for emergency custody you must prove that your child is exposed to a substantial risk of:

• Bodily injury;
• Sexual abuse,
• Abduction, or
• Removal from the state for the purpose of evading the jurisdiction of the court.

The grounds specified are very specific, therefore emotional/psychological abuse is specifically not covered.  General neglect will not support emergency custody unless it is deemed to create a substantial risk of one of the delineated factors.  If you’re able to establish grounds, you’ll be awarded a temporary emergency custody order.

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How to Get an Emergency Custody Order

Emergency custody is typically sought via an ex parte proceeding.  An ex parte hearing does not require all parties to be present or have notice of the hearing.  However, because of this fact, judges are extremely hesitant about issuing ex parte orders and will only do so after trying to ascertain the credibility of the movant and the relevant facts.  Many counties have issued local rules that require the attorney filing an ex parte motion to make disclosures about the status of the case.  Frequently, the moving party must disclose to the court key facts such as whether:

• there is an existing custody order
• there has been previous litigation involving the children
• the movant has child abuse or criminal charges pending relating to the minor child
• there are pending domestic violence proceedings or existing protective orders
• there are pending termination of parental rights or adoption proceedings
• the Department of Social Services has been involved in the past or there is an open investigation
• there is an opposing attorney, if so the name of opposing counsel and whether they have been provided with notice of the filing.

If you’re able to obtain an ex parte order the opposing party is entitled to a return hearing within 10 days of the issuance of the order.  At the return hearing, the other side will have an opportunity to defend against allegations made in the initial motion.  If the moving party prevails at the return hearing a temporary order is entered which remains in place pending a further hearing.

Where Can You File for Emergency Custody

Normally, you cannot file for custody in North Carolina unless you’ve resided here for 6 months.  However, North Carolina courts can exercise temporary emergency jurisdiction when to issue an emergency order when:

• The child is present in North Carolina
• The child has been abandoned (i.e., left without provision for reasonable and necessary care or supervision)
• It is necessary in an emergency to protect the child because the child, his/her sibling, or parent is subjected to or threated with mistreatment or abuse.

Seeking emergency custody in North Carolina is a difficult process.  Unfortunately as attorney we must advise most clients that emergency custody is not appropriate based on the facts of their situation.  However, if your fact scenario warrants an emergency custody filing we are available to file on your behalf within 24 hours of your request.  Even if emergency custody is not warranted by your facts, we can assist you in advising alternative remedies to keep your children safe.

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Helpful Links

• N.C.G.S 50-13.5(d)(3) (Grounds for Emergency Custody)
• N.C.G.S 50A-204 (Temporary Emergency Jurisdiction)
• Basics of Child Custody
• Can I Move Out of State With My Kids
• Our Child Custody Practice