Emergency Visitation Rights

By Stephanie Reid

In extreme situations, a judge may be able to issue an emergency visitation order on an ex parte basis. This means that the judge will issue the order without the requirement of notifying the other party or a full hearing. An ex parte order is temporary in nature, usually lasting no longer than 30 days, and provides the parent seeking protection the opportunity to obtain judicial assistance without the lengthy waiting period usually associated with domestic cases. As always, any proceeding involving children will be decided based on the best interests of each child.

Grounds for Emergency Relief

Emergency relief is given sparingly and only in dire situations. In general, an emergency visitation order may be granted when someone is about to cause serious, imminent injury or harm to another person, or the health, safety and welfare of a person is otherwise in serious and immediate jeopardy. In the context of child visitation, a modification of a current order may be necessary when the parent with visitation rights is engaging in abusive or neglectful conduct during visitation times. Another possible scenario may involve exposure to drugs or criminal activity. The court may also issue an emergency visitation order even in a situation where no current order is in place.

Pleadings

Typically, family courts have an on-call judge or magistrate available after hours and on weekends to issue emergency orders. An individual in need of an emergency order outside normal hours should contact the local law enforcement agency for assistance with contacting the court on an ex parte basis. The individual petitioning for emergency visitation rights (the petitioner) must submit a petition containing specific facts and allegations giving rise to the need for the emergency relief. In an ex parte situation, the court is foregoing the constitutional requirement to issue service of process and notification on the other party and will need evidence of abuse or other extreme activity. Some courts may also require an emergency petitioner to submit a form detailing his attempts to notify the other party of the intent to file for emergency visitation rights.

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Timeline of Case

If the ex parte emergency visitation order is issued, the party must notify the other parent immediately, usually within 24 hours of the order. Emergency visitation orders are temporary in nature and generally expire between 10 and 30 days after issuance. Once the emergency order is in place, the court will schedule a full hearing on the matter either before or on the date the emergency order expires. The defendant will be notified and served according to civil procedure rules and have an opportunity to present a defense to the visitation petition.

Subsequent Hearing

At the full hearing following the ex parte order, the petitioner must present evidence to the judge that the change or establishment of visitation rights is in the best interests of each child involved. The court will likely uphold the order if it finds that the child maintains a strong relationship with the petitioner, the petitioner does not have a history of domestic violence or criminal involvement, the child is adjusted to the petitioner's home, school and surroundings and, if age appropriate, the child consents to the change.

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Terminating Visitation Due to Incarceration
 

References

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