In an emergency custody hearing, a judge hears preliminary evidence and addresses emergency situations only. She may enter a temporary order granting custody to one parent based on the facts of the emergency. State laws vary greatly with regard to the circumstances under which an emergency hearing may occur as well as the procedure for a hearing. Some states, for example, hold the hearing in front of a judicial officer; in other states, the hearing is before the judge.
Emergency Hearing Circumstances
To obtain an emergency hearing, you must file a petition with the court indicating there is an emergency issue that must be resolved. Minor disputes over visitation or child support do not typically constitute emergencies and violations of previously rendered orders are handled through contempt proceedings. Situations that endanger the welfare or health of the child are typically the only situations that warrant an emergency hearing. These situations might include child abuse or neglect, the presence of a sex offender in the home, a parent's substance abuse or a parent's complete refusal to allow the other parent to see the child.
At the hearing, the judge will hear only evidence pertaining to the emergency. Child support, division of property and other matters are reserved for trial. The petitioner -- the person who requested the hearing -- will present evidence of danger to the child. This evidence might include sworn statements, medical records, reports from child protective services, and statements made by the child or parent. Judges are unlikely to grant temporary orders unless there is evidence of abuse. In cases where there is an allegation of abuse but no evidence, the judge may appoint a guardian ad litem or child psychologist to investigate the case and make a recommendation.
After hearing evidence and arguments from both sides, the judge will issue a temporary order. These orders last for a limited period of time -- either for a set number of days or until the final order is issued. The judge may issue an order immediately or wait a few days to do so. In cases of child abuse, the judge may grant limited supervised visitation to the abusive parent or may order the abusive parent to attend parenting or anger management classes.
In most states, the temporary order itself is not used as evidence at trial. Instead, any evidence of abuse must be resubmitted. The parent accused of creating a dangerous situation can also present evidence that the problem has been resolved. For example, a drug-addicted parent may present evidence that she has attended a drug treatment program. All states use the best interests of the child as the primary factor in determining final custody arrangements, and most states have a presumption that custody by an abusive or incompetent parent is not in the child's best interest.
References & Resources
- Mr. Custody Coach: Information About Emergency Child Custody
- The Art and Science of Child Custody Evaluations: Jonathan W. Gould et al.
- Family Law for the Paralegal: Mary E. Wilson
- Family Law for Paralegals: J. Shosana Ehrlich
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