Distinguishing emergent and non-emergent circumstances is not always simple – that’s law for you – so this article seeks to give you the basics in preparation for pursuing emergency relief.
While a fair custody agreement and stable visitation schedule is usually best for both parents and children, certain circumstances that warrant the modification of an existing agreement may arise. Sometimes these circumstances are considered emergent and can be reviewed right away at an emergency custody hearing, while others need to be addressed through regular motion practice (a predetermined court date to decide permanent custody terms, based on the motion schedule established by the court each year).
How to Qualify for an Emergency Custody Hearing
In order to qualify for an emergency custody hearing, you will have to petition the court for the hearing and have substantial evidence that your child is in imminent danger or harm while visiting the other parent. Examples of emergent circumstances would include physical or sexual abuse, substance abuse or neglect, such as leaving the child home alone for extended periods of time at a young age. Any of these incidents that have occurred or are occurring should be documented when possible by saving all forms of communication with the other parent, such as calls and texts, and by taking photos and videos. If other friends or family members are present for the incidents, they may also be called as live witnesses for the hearing.
Any circumstances that do not present imminent danger and harm to your child do not qualify as emergent circumstances and can only be reviewed during regular motion hearing dates. Minor disputes with the other parent over money or property will be dismissed if you bring them up during the emergency hearing.
Reminder: You cannot legally keep your child from seeing their other parent before the emergency hearing occurs. The best course of action is to ensure the child’s safety the best you can, such as asking another trusted person to be present during visitations.
Emergency Custody Hearing Proceedings
At the emergency hearing, the judge will hear and review the preliminary evidence and issue an emergency custody order if they believe it is necessary. This order is only valid for a set number of days or until the next hearing occurs to decide the permanent situation. At the final hearing, you will have to resubmit evidence from the emergency case, and the defending parent will have a chance to provide evidence that the relevant issue has been resolved, such as records of anger management classes or a drug treatment program. The judge will then remove the temporary order, if they have not done so before the trial, and grant a permanent order based on the evidence they review. The permanent order may be the same as what was in place before the emergency hearing if there is evidence that the initial circumstances have been resolved.
Take Action Now
If you suspect that your child is in danger while visiting with their other parent, don’t jeopardize their safety or your case by waiting to take action. Let the experienced attorneys here at RBY Law help you protect your child and guide you through this emotional process. Contact us today to get started.
This article was part one of a two-part series on emergent circumstances. Stay tuned to our blog for another article on Orders to Show Cause.