Learn what an ex parte order is, the criteria for obtaining one, and who is…
If you are concerned about the health and welfare of a child, you can petition the court for emergency custody, particularly if you are their parent, grandparent, or another member of their immediate family. However, it's important to be aware that filing for emergency custody of a child is a serious matter and therefore not granted without careful consideration from a family court judge.
To help you understand the legal process and how to get an emergency custody order in NC, our child custody attorneys in Raleigh are sharing everything you need to know.
What is Emergency Custody?
Emergency custody refers to the temporary transfer of custody rights in situations where a child's safety, well-being, or immediate welfare is at risk. The purpose of emergency custody is to provide swift intervention to protect the child from imminent harm or danger.
Grounds for Emergency Custody
Emergency custody is typically sought in cases involving domestic violence, child abuse or neglect, substance abuse, or other circumstances where the child's physical or emotional well-being is in immediate jeopardy. These situations often require a compelling and urgent need for intervention to ensure the child's safety.
Emergency custody means removing a child from their home and taking away a parent's right to custody, at least for a temporary period. This is only granted when a child is considered to be in immediate harm with a substantial risk of:
- Physical injury has occurred or is suspected to occur, for instance, a child is in a home with someone who is physically abusive or neglectful to the point where serious injury is possible.
- Sexual abuse is present or suspected.
- Abduction or being removed from North Carolina to evade a court or custody order. Note: this can include relocating with a child during a divorce but not necessarily.
Disagreeing with a parenting decision, not allowing visitation to an immediate family member, or similar issues are not grounds for immediate custody.
Understanding Jurisdiction for Emergency Custody in NC
Jurisdiction for emergency custody matters in North Carolina refers to the authority of the court to hear and make decisions regarding custody cases involving children. Understanding the jurisdictional aspects is crucial when seeking emergency custody in NC.
Home State Jurisdiction
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a law adopted by most states, including North Carolina, to determine jurisdiction in custody cases. Under the UCCJEA, the home state of the child typically has jurisdiction over custody matters. The home state is the state where the child has lived with a parent or guardian for at least six consecutive months before the custody case is filed.
Temporary Emergency Jurisdiction
Temporary emergency jurisdiction allows a court to assume jurisdiction over a custody case even if it is not the child's home state. NC law provides for temporary emergency jurisdiction if the child is present in the state and it is necessary to protect the child because they are exposed to a substantial risk of abuse, neglect, or other immediate harm.
Child's Connection with NC
North Carolina may have jurisdiction if the child has a significant connection with the state, such as residing with a parent or guardian, attending school, or having other relevant connections. The court may also exercise jurisdiction if there is substantial evidence available in NC concerning the child's care, protection, training, and personal relationships.
Exclusive Continuing Jurisdiction
Once a court in NC has made an initial custody determination, it retains exclusive continuing jurisdiction as long as the child or a parent continues to have a significant connection with the state. This means that NC retains the authority to modify and enforce the custody order, even if the child and the parties have moved to another state.
In emergency situations where immediate action is necessary to protect the child, NC courts can exercise jurisdiction regardless of the child's home state or the ongoing custody case's jurisdiction. Emergency circumstances may include instances of abuse, neglect, or imminent danger to the child's well-being.
Navigating the jurisdictional aspects of emergency custody in NC can be complex. Consulting with a knowledgeable family law attorney at Doyle Divorce Law is essential to understand the specific jurisdictional rules, filing the appropriate motions, and presenting a compelling case for emergency custody.
How to File for Emergency Custody in NC
Filing for emergency custody in North Carolina involves several essential steps and considerations. Let’s review the processes involved in filing for emergency custody in NC.
STEP #1: Gather Evidence Grounds for Emergency Custody
It is important to be aware of the grounds for emergency custody, such as abuse, neglect, domestic violence, substance abuse, or immediate threats to the child's well-being. Gathering evidence and documentation supporting these concerns is crucial.
STEP #2: Consult with a Child Custody Attorney
Seeking the guidance of an experienced family law attorney who specializes in custody matters in NC is highly advisable. They will provide guidance, assess the merits of your case, and offer legal advice tailored to your specific situation.
STEP #3: Prepare the Emergency Custody Motion
Working closely with your attorney, you will prepare an emergency custody motion. This written request to the court explains the need for immediate custody due to the emergency circumstances. It should include a detailed description of the risks the child is facing, along with supporting evidence and legal arguments.
STEP #4: File the Motion with the Court
File the emergency custody motion with the appropriate court in the county where the child resides or where the custody case is pending. Follow the court's filing procedures, including submitting the required copies of the motion and paying any associated fees.
STEP #5: Serve the Other Party
Properly serve the other party involved in the custody case with the filed motion. This ensures that they are informed about the emergency custody proceedings and have an opportunity to respond. Adhere to the specific rules and requirements for serving legal documents in NC.
STEP #6: Attend the Emergency Custody Hearing
Once the motion is filed and served, the court will schedule an emergency hearing to consider the request for emergency custody. Attend the hearing with your attorney, present your case, provide supporting evidence or testimony, and argue for immediate custody based on the emergency circumstances.
STEP #7: Receive the Court's Decision and Temporary Order
After reviewing the evidence and considering the urgency of the situation, the court will make a decision regarding emergency custody. If the court grants the emergency custody request, a temporary order will be issued, outlining the custody arrangements until a more comprehensive hearing can be scheduled.
Ex Parte Actions for Emergency Custody Motions
If you feel the circumstances of the child in question meet the criteria for emergency custody to be appointed, you must file a complaint or a motion along with a sworn statement providing information regarding the cause of the motion. You can also include third-party statements backing up your statement.
When your motion and statement are presented to the judge, this is often an ex-parte action, meaning “for one party.” This means the judge often has to make a snap decision without both parties being present.
Ex-parte actions are taken very seriously as it's incredibly important in most cases for judges to hear both sides before making a judgment. This is why it is so important to provide factual, credible information while disclosing issues that can be important to the case.
Examples of the type of credible information to present to the court include:
- An existing custody order
- Previous court cases related to custody
- Pending child abuse or domestic abuse charges against the parent
- Pending termination of parental rights
Providing transparency is essential in ex parte actions. Leaving them out can jeopardize your motion.
What Happens After an Emergency Custody Order is Granted?
If the judge does grant your emergency custody order, you will receive immediate custody, which will be effective until your hearing date, which is within 10 days. At that time, both parties will appear before a judge, and the other side can defend themselves against the claims made in the sworn statement from the original motion. If the court maintains the emergency custody order, it will remain in effect until either party moves for a hearing for permanent custody settlement.
Do I Need a Child Custody Lawyer to File Emergency Custody?
Before filing on your own, you should reach out to a child custody attorney to discuss your case. An experienced lawyer will be able to determine if there are grounds for child custody, and if not, what the best course of action would be. If there are urgent concerns, but they aren't considered emergencies from a legal perspective, a Temporary Parenting Arrangement may be the best option, and your attorney can help you achieve this.
While it is not mandatory to hire a child custody lawyer to file for emergency custody, having legal representation can be highly beneficial in navigating the complex legal process and increasing your chances of a successful outcome.
Here are some reasons why you may want to consider hiring a child custody lawyer for emergency custody cases:
- Knowledge of the law
- Legal expertise
- Legal strategy
- Gathering evidence
- Court representation
- Negotiation and settlement expertise
While you have the right to represent yourself in a custody case, the complexity and emotional nature of emergency custody matters make it advisable to seek the assistance of a qualified child custody lawyer. Their legal knowledge, expertise, and ability to provide effective representation can significantly increase your chances of obtaining the desired emergency custody arrangements for the protection of the child.
In Immediate Need of a Child Custody Lawyer? Contact Doyle Law Today!
If you feel a child is at immediate risk of danger due to their parent or legal guardian, and you wish to file for emergency custody, our family law attorneys can help. Our experienced team will listen to your concerns, help you draft a sworn statement and file a motion, and appear at a hearing by your side to guide you through the process.
To learn more or to schedule a consultation, reach out to The Doyle Law Group today at (919) 301-8843 or fill out the contact form below to get started.
Disclaimer: the content above is for general informational purposes only and should not be considered legal advice or legal counsel. If you wish to speak to a family law attorney or child custody lawyer, contact the Doyle Divorce Law Group immediately. Our family attorneys and divorce lawyers represent clients in Raleigh and surrounding areas, throughout North Carolina, the Triangle, and beyond.