Emergency Custody: What is an emergency in the eyes of the Court?

So, you want to file for emergency custody of your minor child or children? This is a statement that family law attorneys often get, however, many people do not understand what filing an Ex Parte Custody Modification truly means. What does Ex Parte mean? What does the court look at when determining an emergency? Should I file for an ex parte emergency change in custody or just a modification of custody? Can I do this on my own or should I hire an attorney? If you are reading this blog, then these are probably questions you have. Hopefully by the end of reading this post, you will have a better understanding of these issues to base your decisions on. So, let us dive in.

What does Ex Parte mean?

Ex Parte in its simplest terms means “without the other party.” An ex parte decision is one decided by a judge without requiring all of the parties to the dispute to be present. Regarding ex parte custody matters, one must file a petition stating the exact nature of the allegations regarding the other party (usually a parent or guardian) and state why it is an emergency that custody be changed immediately regarding the minor child or children. A judge may look at this petition without the other party’s consent or objection. Most of the time, the other party does not know that it has been filed yet. Should the judge decide that the nature of the allegations warrant an immediate removal of the child or children, the judge may sign an Ex Parte Order giving immediate but temporary custody to the party which filed the petition. If this Order is entered, a temporary hearing must be expediated in the matter so a hearing will be held usually within 72 hours of the Order. This affords the other party a chance to defend the allegations.

What constitutes an emergency?

What constitutes an emergency is a question of fact for the judge. The judge must look at the immediate threat or harm to the child or children if they are allowed to stay in the home. The judge has a difficult task of weighing the emergency allegations and request for immediate custody in your petition against the harm of not allowing the other party a chance to defend these allegations. As you might guess, the burden of proof for an ex parte emergency custody order being signed by the judge is high. That being said, there are some things that usually meet those standards. Things such as illegal drug use in the home with the children present, severe abuse or neglect of a minor child, a recent arrest of the primary custodian for things such as illegal drug use or any other severe criminal charge. Again, these are examples and not a certainty that an emergency order will be entered. A court must look at each petition on a case-by-case basis and review all the facts submitted in a petition to determine if the allegations give rise to an emergency custody change.

Should I file for an ex parte emergency change in custody or just a modification of custody?

Generally, courts impose more stringent standards for modifications than for initial determinations of custody. “A party seeking to modify custody must prove that a material change of circumstances has occurred since the last order of custody or that material facts existed at the time of the decree that were unknown to the court.” Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. While custody is always modifiable, appellate courts require a more rigid standard for custody modification than for initial custody determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues.

In all honesty, it must be a TRUE emergency for a court to enter an emergency order. As stated above, immediate threat or harm to the child or children must be shown for a court to enter an order ex parte. However, just because a court denies your ex parte emergency does not mean they are denying the custody change completely. The court is just stating that you did not meet the burden of proof to show it is an emergency. In many instances, the court will still allow your petition to be heard at a hearing, but the court will allow the other party to respond and give them a chance to hire an attorney.

Whether or not your particular situation could meet the standards of an ex parte emergency custody filing is something you should discuss with an attorney. Some do, some do not. A family law attorney should be able to advise you of whether or not you should file the emergency or a regular modification of custody. This type of matter is extremely fact specific so every client’s answer to this question may very well be different.

At Eason Law, we have helped many people with both emergency custody matters and custody modification cases. If you need an experienced legal team to help you navigate your custody law matters, call us today and let us help you through the process.