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What is Emergency Custody?

How emergency custody works and why parents and guardians file for it.

Most parents who switch to shared parenting after a separation or divorce must have a shared custody agreement for their children, whether it's an even 50-50 split or an adjusted 60-40 or 70-30. Once a parenting plan and custody schedule are established, they can be updated by going through the courts to request modifications as circumstances change.

For most co-parents requesting modifications, it usually takes time for an update to go into effect. In instances where a child's health and well-being are threatened or impacted, however, a temporary custody change may be made on a much quicker timeline. For parents concerned about the adverse effects of a situation, filing a motion for an emergency custody order may be necessary to protect the children involved.

What is emergency custody?

Also referred to as an ex parte custody order in some states, an emergency custody order is a type of child custody court decision that is granted by a judge after a motion is filed. Subsequent hearings determine whether a parent or guardian should have custody of a child in a situation that requires immediate action to maintain the safety and well-being of a child. Emergency custody is typically granted due to a serious, unexpected, or dangerous event with either parent in a shared parenting relationship that impacts the children involved. While filing for emergency custody varies by state regarding the procedure and timeline, it can usually be obtained through one of two methods.

In the more traditional process, the court accepts a motion requesting emergency custody, notifies the other parent of the requested order, and proceeds to a hearing where both parties attend. These typical emergency custody motions result in both parents attending at least one hearing, stating their initial cases, and receiving a ruling together within several days or a few weeks.

In some instances where the issues are interpreted as more significantly time-sensitive or high-stakes than usual, a judge may proceed with the motion and immediately grant an ex parte custody order where only the parent who filed the motion is required to participate. In addition to only requiring the parent who filed to be present, an ex parte order does not require the child's other parent to be notified of the motion.

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How long does emergency custody last?

Emergency orders can sometimes last as long as it takes to request and receive them from the courts. While the duration can vary between states and cases, emergency custody is meant to serve as a temporary fix until both parties can appear in court, present arguments, and reach a long-term solution that most benefits the child involved. Once hearings related to the custody order conclude, a judge will terminate the temporary order or modify it to last longer.

What situations qualify for emergency custody?

The types of situations that qualify as an emergency may vary depending on state law, but they can generally include:

Who can file for emergency custody?

While it's assumed that either of a child's co-parents can file for emergency custody, it's not explicitly restricted to the child's parents. Any legal parent or guardian of a child can file for emergency custody if they believe an emergency exists that may endanger a child. In some cases, relatives who are not the immediate family can also file. Whoever thinks the child is in danger must file a petition with the court to request a hearing where they will appear before a judge to present their case and evidence.

What type of proof is required?

When filing for emergency custody, it is necessary to have strong evidence to support the claim that the child is in immediate danger. Because the other parent who stands to lose custody may have a chance to argue why an emergency custody order is unnecessary, bringing evidence to family court must be done as accurately and comprehensively as possible.

Evidence that can support a request for emergency custody may include:

  • Police reports
  • Social worker reports
  • School records
  • Court records
  • Affidavits from witnesses to neglect or abuse
  • Photos or text messages
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What happens after emergency custody is granted?

After reviewing any presented evidence and listening to litigation, the judge will determine whether to grant an emergency custody order. If an emergency custody order is granted, it will only be in effect temporarily. Both the complainant and the parent in question will attend a full trial to determine a long-term outcome that will be implemented once the emergency custody order ends.

With these additional hearings, a judge will pursue facts and information that help determine whether there's a more significant issue or refute the claims of child endangerment. At the trials following the initial granting of emergency custody, the person who began the proceedings will once again present the evidence they have that shows current custody arrangements are not in the child’s best interest.

The parent who allegedly contributed to the need for emergency custody must present their case to refute the original claims, terminate the emergency order, and regain their rights. If the allegations are false, they must provide evidence to show that the original claims were untrue. If the allegations are true, they must prove that the previous problem that led to emergency custody has been resolved. For example, a parent accused of drug abuse may present evidence that they have attended a drug treatment program or passed drug tests.

Emergency custody is a rare occurrence, but it can be a critical asset for co-parents or guardians who are genuinely concerned about the safety of their children. Because of the complicated steps and requirements of the process, speaking with a local, experienced family law attorney about your options in court is vital to your protective efforts. Whether you're considering filing for emergency custody or need help preparing for the long-term hearing, take advantage of traditional, low-cost, or free legal assistance to ensure you can prepare for court and prioritize your children's well-being.

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