Emergency Custody Laws

by Rob Jennings J.D.
State law can provide for emergency custody of children.

State law can provide for emergency custody of children.

Ezra Shaw/Digital Vision/Getty Images

Sometimes, when a couple's relationship deteriorates to the point of self-destruction, their children get caught in the middle. The situation can be especially dire at the outset of a breakup, when emotions run high and common sense runs low. However, state child custody laws have a variety of ways to protect children when emergencies arise.

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Ex Parte Relief

Usually, a judge can't rule on a party's claim for relief without due notice and an opportunity to hear from the other party involved. Notice periods can range from a few days to a month or longer. In emergency child custody situations, however, state law often allows for emergency motions to be granted without notice to the adverse party. The resulting orders, called "ex parte" orders, can protect children by granting emergency custody to one party without alerting the other side; thereby, reducing the chances that the other party might kidnap the children or do something else that could place their physical and emotional safety at risk. Usually, ex parte orders must be reviewed within a very short time, typically 10 days or less.

Domestic Violence Protective Orders

Many victims of domestic violence lack the resources to retain an attorney to pursue a family court emergency custody motion; therefore, judges and magistrates are often empowered to grant emergency custody in domestic violence cases, where the process is typically more streamlined. As with an ex parte order granted in a general family court proceeding, the emergency custody provisions set forth in a domestic violence protective order must be reviewed within a short time frame.

Social Services

If a situation has grown especially dire and neither parent has moved for emergency custody -- or where only one parent is known to exist -- Child Protective Services, or CPS, typically a division of the local Department of Social Services, is often empowered to intervene and remove children from a family unit on an emergency basis as part of an ongoing investigation. CPS units are reactive, not proactive, which means they won't get involved unless they receive an alarming report from someone with knowledge about the case. These laws also provide for a quick review hearing to ensure the due process rights of all parties are protected.

Temporary Child Custody

Some child custody situations, while far from ideal, fall short of the situations where a judge is willing to grant emergency custody on an ex parte basis. Family law codes, therefore, usually permit a party to schedule a temporary child custody hearing within a short time after an action, even when no clear and present danger to the child's safety exists. Temporary orders can stabilize a child's living situation and prevent parties from engaging in a tug-o-war while their family court case progresses.