What qualifies as a sufficient emergency is generally determined by your state’s statute. Typically, courts won’t remove a child unless the child is in “immediate danger” of harm or about to leave the state. “Immediate harm” often means recent or habitual domestic violence or sexual abuse. [1] X Research source Immediate harm may also be a failure to supervise, as when a parent leaves a young child alone at home while (s)he went to the store. [2] X Research source Understand that “emergency custody” is temporary. [3] X Research source If you successfully petition the court for emergency custody, you have not been awarded permanent custody of the child. Because time is of the essence, a full, formal hearing will not be held. Sometimes, emergency custody will be granted without any hearing at all. Alternatively, a hearing will be held with only the parent petitioning for emergency custody in attendance. However, the court will hold a full formal hearing at a later date, with both parents present, before awarding permanent custody. [4] X Research source
“In loco parentis” means that although you are not a legal parent, you have acted as a parent and taken on the responsibilities of parenthood. [6] X Research source
You will want this information not only for your petition for emergency custody but later, should you seek full custody.
If costs are a concern, some attorneys provide “unbundled services,” which means that they will provide limited services such as document preparation, legal advice, or coaching for a flat fee. Some places also offer counseling/legal help for free. If at any time you are confused about how to proceed, you should seek out a lawyer’s assistance. To find an experienced, local family lawyer, search your yellow pages or perform an internet search for “child custody attorney” and your city or county. Nevertheless, if you must file something that day do not wait to talk to a lawyer.
To find the appropriate courthouse, visit your state’s supreme court website. Type “Supreme Court” and then your state into a search engine. Alternately, you can visit this website and then click on your state. At your state’s Supreme Court website you should look for links to “Find Your Court”[8] X Research source or “Court locations. ”
Often the local rules are on the court’s website. You should download them and search for “emergency hearing” or “ex parte hearing. ” The rules can be lengthy, so searching using CTRL+F will take you to the relevant part.
The forms go by different names depending on the court. Common names include “Temporary Emergency Court Order,”[10] X Research source “Petition for Emergency Relief,” and “Motion and Affidavit for Emergency Ex Parte Order. ”[11] X Research source There are as many different names as there are courts. Visit the website for the courthouse where you will file the forms. The forms can often be downloaded from the court’s website. Nevertheless, you should still call and ask the clerk which forms you need to fill out. Although the clerk cannot provide legal advice, she should be able to tell you what forms you need in order to seek emergency custody. You may need to fill out multiple forms. Some courts may require that you already have a regular “motion for custody” pending. In these situations, you will have to file the other motion first. For this reason, be sure to tell the clerk what you have filed or haven’t filed. If the court clerk cannot help you, or you are confused as to what you need to fill out, seek the help of an attorney.
Generally, you will need to provide the following information: your name and address, the other parent’s name and address, the other parent’s attorney’s name and address, as well as the reason why you are seeking the motion. Remember to only allege what you can prove with evidence. If you do not have proof that the child is in immediate danger of physical harm, then you should not make that claim in a motion. You could be held in contempt of court and ordered to pay court fees. [13] X Research source
Also attach any other documentation that supports your contention that the child is in immediate harm. Read the form carefully to see if attaching information is allowed. Be prepared to pay any filing fees. Call ahead and ask how much the filing fee is and what acceptable methods of payment are. Ask when you should return to pick up the order. Sometimes, a judge or hearing officer will decide on emergency custody without needing to hold a hearing. In those situations, a written order granting emergency custody will be given to you. Alternately, the judge or hearing officer may schedule a hearing for that day or the following day. [15] X Research source You will need to stop in and ask for the day and time so that you will know when to appear before the judge.
You must make copies and serve the other parent. Make 2 copies for your records and 1 copy for the other parent.
Generally, you should be able to serve notice using the sheriff/police. For a small fee, the sheriff/police will serve the other parent and fill out a form that shows service was made. Some courts may also allow you to mail notice. If the court allows, and it is easier to send by mail, then you will have to send the forms postage paid, return receipt requested.
This hearing is not a full trial, which you may have experienced when the court was initially deciding custody.
Judges are unlikely to grant orders for emergency custody unless there is sufficient evidence of abuse. [17] X Research source Use medical records or statements made by your child to support your argument.
You should mark your documents “Exh. A, B, C” or “Exh. 1, 2, 3. ” The judge will likely give a temporary order at the close of the hearing. [18] X Research source This temporary order will be in effect until the final order is issued.
