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What is Emergency Child Custody and How Do You File For It?

Michael Tierney
February 2, 2023

Building a family is one of the most fulfilling byproducts of marriage and gives a sense of completion to most people. Raising a child is a significant responsibility that generates the next generation of leaders and professionals. When we succeed as parents, our children succeed as adults and pave the way for a new era in human society.

The circumstances of a child's upbringing can vary and impact their well-being and mental development. These variances will not necessarily determine whether a child undergoes healthy development but can promote the best circumstances for them. Unfortunately, not every family is sustainable, and many couples will break up, which can impact the child's upbringing.

Solution Child custody is one of the most critical parts of the negotiations when a married couple divorces. Child custody arrangements determine which parent lives with the child full-time and which parent is awarded visitation. The negotiations are based on a few concepts that help the judge determine which parent is best suited to raise the child full-time.

While this system usually works, there are certain scenarios where the custodial parent ends up being a poor choice for overseeing a child's upbringing. When it comes to light that the custodial parent threatens the child's well-being, the non-custodial parent will likely want to act.

Fortunately, there is such a thing as emergency child custody that can help improve the child's chances.

What is Emergency Child Custody?

Child custody arrangements are usually definitive decisions that are seldom overruled for any reason. Despite the judge's authority, it is within our rights to appeal the judge's decision and request a change in the custody arrangements. One of the ways we can alter the existing custody arrangement is via an emergency child custody order. However, some people might not understand an emergency child custody order or how it affects the overarching custody arrangement.

Solution The most important detail is that emergency child custody orders are temporary orders that do not last past a certain timeframe.

The orders are designed to temporarily reassign custody of the child to the other parent, though you must meet certain criteria before a judge approves the issue.

Emergency Child Custody

An emergency child custody order requests that the child be placed in the non-custodial parent's care because the custodial parent is endangering the child. When a child is placed in a parent's custody, the judge determines which parent is best based on the child's best interests. When that parent goes on to endanger the safety of that child, they no longer embody the child's best interests.

As a result, temporary emergency custody orders help the non-custodial parent rescue the child from these dangerous circumstances. Like most ex parte orders, a temporary custody alteration requires approval from a judge and valid cause. You cannot request an ex parte order frivolously or risk antagonizing the judge.

Ultimately, an emergency child custody order is an ex parte tool designed to help protect a child from a harmful parent. Successfully filing an emergency custody order does not mean the overall custody arrangement changes. It only relocates the child until the concerns with the custodial parent are investigated and resolved. While understanding emergency child custody orders is important, you must know how to file them.

How Do You File an Emergency Child Custody Order?

When you have concerns about your child's safety concerning the custodial parent, wanting to get them out of a hostile environment is understandable. Unfortunately, it is not as simple as going to your ex-spouse's home and taking your child home. Taking your child from the custodial parent of your own volition is considered kidnapping and violates court orders.

This means you could be arrested and lose any chance of seeing your child again. To legally protect your child, you must go through legal channels to file an emergency child custody order and gain temporary custody of your child. The problem is that not everyone knows how to file an ex parte order for temporary custody or any other ex parte.

Ex parte, or emergency, orders are meant to be filed when the circumstances are severe enough to warrant immediate action before further deliberations are complete. This urgency means that you must file the requests for ex parte orders in specific ways to ensure the rights of all parties are observed. The problem is that the exact steps needed to file those requests vary by state, so it can be difficult to put together a definitive guide that works nationally. Nevertheless, the process employs certain universal details essential to filing the form.

Solution To file an emergency child custody request, you must draft a motion to present to the judge.

A motion is a petition that explains why you feel custody should be temporarily reassigned to you. Drafting a motion can be extremely complicated because there is a significant amount of legal terminology and information that the motion must include. As a result, it is generally recommended that your attorney draft the motion on your behalf since it ensures the motion will use the correct legal terminology. Additionally, an attorney can accelerate the process since they have direct access to the courthouse. Once the motion is drafted, it will be filed with the courthouse in your area.

Filing an Emergency Child Custody Order

After the motion is filed, a judge will review the request, and it will take a few days for the judge to finalize their assessment. In extreme cases, the judge might finalize their assessment within a few hours of you filing the motion. Getting a rapid assessment of your motion requires the situation to be dire enough that any delays could lead to serious injury or loss of life. From there, the judge will decide whether to execute the order.

If the order is executed, the judge will temporarily assign custody of your child to you until a hearing can be scheduled. The hearing is where the real discussion begins since you can appear before the judge and justify why the court should change the custody arrangement permanently.

This hearing is what makes the temporary custody alteration an ex parte process. "Ex parte" refers to hearings where one party is absent or excluded. This means the custodial parent will not be present during the hearing, and you can address your concerns without interruption. Depending on the hearing, the judge will decide whether the temporary custody alteration is overturned, modified further, or upheld indefinitely.

We must consider other details since child custody arrangements are extremely sensitive contracts. Ultimately, temporary custody orders exist to get a child out of dangerous situations until the court system can execute a more permanent solution. While these orders are important, there are restrictions on why you can file them.

Why Can a Temporary Custody Order Be Filed?

As much as we might want to make these requests solely because we want our children back in our lives, we cannot file these motions frivolously. There must be a valid reason why you request a temporary change to the custody arrangement. While the court tries to protect the child by assigning custody to the parent who can care for them the best, sometimes there are issues, and the custodial parent is more of a threat than initially anticipated.

When this occurs, the child's safety is questioned, and you might be eager to rescue them from a dangerous living arrangement. The main issue is identifying a genuine threat to your child and a misunderstanding. You can legally file a motion if a child's health and safety are endangered. The question is, what constitutes a threat to the child's safety?

The most obvious threat to a child's safety is a parent who has developed abusive tendencies and directs them toward your child. Proving abuse is a difficult task since abuse can take multiple forms and does not always leave physical markers. If your ex-spouse is physically abusive, your child will likely demonstrate obvious signs of abuse and have corresponding medical records.

Emotional and verbal abuse are harder to prove since it requires witnesses and psychological expertise to confirm. However, constant abuse of any kind directed at your child serves as legitimate cause to file a temporary custody order.

The legitimacy of these requests is doubled if the ex-spouse is sexually abusing your child. Sexual abuse of a child is a serious crime and a felony that lands the perpetrators on a list for the rest of their life. Sexual abuse also leaves a distinct trauma on the child that permanently affects their interpersonal relationships and mental stability for the rest of their lives. Just like the other types of abuse, sexual abuse is a legitimate cause to file a temporary custody order.

A Child's Safety Threatened

Abuse is not the only cause for a temporary custody order, as the threat to your child is not direct. Some people fall victim to substances that help them cope with mentally or emotionally strenuous situations. Too many people fall victim to dependence on drugs and alcohol, which allows them to escape the mental and emotional strains they endure daily.

Unfortunately, parents who fall victim to addiction tend to lose their ability to prioritize their child's needs over feeding their addiction. This could mean fiscal irresponsibility that impairs the child's dietary or educational needs. It also includes neglect since indulgence in these addictions prevents us from staying grounded in reality.

In extreme cases, addiction can stoke emotional outbursts and triggers abusive behavior. This aggression usually stems from withdrawal symptoms that destroy emotional and mental judgment. Ultimately, addiction renders people incapable of being capable parents since their priority will almost always be ensuring they get their next fix rather than tending to their children's needs. Therefore, your ex-spouse becoming addicted to any substance could be grounds for filing a temporary custody order.

Another significant stain on your ex-spouse's parental status is a criminal record. If your ex-spouse has ever been arrested for any offense, no matter how small, you might be concerned about your child's safety. If your ex-spouse is currently arrested, they might spend significant time in jail. Your ex-spouse being in jail means they cannot supervise your child as expected of a parent.

If your child does not have reliable supervision or parental oversight, they risk getting hurt or involved in criminal activity themselves. When this occurs, you have grounds to file a temporary custody order against your ex-spouse to try and have the main arrangement reviewed for alteration.

It is important to remember that these actions do not guarantee your main custody arrangement will be revised. Sometimes, this temporary order only suspends the original arrangement until they can correct their behavior or clear up any misunderstandings. Nevertheless, your chances of having the main custody arrangement revised increase concerning the level of danger your child is exposed to due to your ex-spouse's behaviors.

Learn the Law

Divorce negotiations can be tense and emotionally draining, to say the least, especially when our children are caught in the crossfire. As parents, we are driven to protect and shelter our children from harmful environments. Unfortunately, those harmful environments can occasionally result from our spouse's behavior.

When your spouse endangers your child, and they are currently under your spouse's care full-time, it is reasonable to want to rescue them and file an emergency custody order. Fortunately, such orders can be filed and, if successful, might be sufficient to have a judge reassess the long-term custody arrangement. Unfortunately, custody is only one concern that affects the divorce process.

Learning About Divorce Law

There are several arguments and concerns that can impact divorce, though an emergency custody order is only applicable after the divorce has been finalized. Nevertheless, you might face stressful and hostile scenarios where your spouse pulls out all the stops to get ahead. To protect yourself, your child, and your case, you must learn as much as possible about divorce to ensure your spouse's legal machinations do not blindside you. Fortunately, accessing this information is much easier than it used to be, and you can prepare yourself for any issues you might face. We realize this is a difficult time, and we hope this article has been helpful.

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Written By:
Michael Tierney

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