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August 17th, 2017
Petitioning the court for emergency child custody is a very serious matter. In North Carolina, there are very limited circumstances for which a court will find justification for an emergency child custody order.
What Is the Process for Emergency Child Custody?
Jurisdiction
Generally, North Carolina courts only have jurisdiction to hear custody matters if the state is the home state of the child. North Carolina is considered to be the child s home state if the child most recently has lived with a parent or a person acting as a parent in North Carolina for at least six months. In the case of a child less than six months old, the child must have lived in the state since birth. However, if the petitioner, child, or sibling of the child is in danger, a court may find the basis for temporary emergency jurisdiction,and you may be able to file for emergency custody even if you have been in the state for less than six months.
Court Proceeding
An emergency child custody request is made to the court by filing a complaint or motion and a sworn statement of facts about the circumstances involving the child. The court process for seeking emergency child custody is an ex parte proceeding. Ex parte is a Latin and legal term that essentially means for one party. In this case, it means the judge makes a decision on the request without requiring all parties to be present.
Ex parte proceedings are very rare in the judicial system, because all interested parties are not present or represented. Because of that fact, judges are very reluctant to grant emergency custody orders. Court practices vary among individual North Carolina counties.
If the judge enters the ex parte emergency custody order, a merit hearing will be held, usually within 10 days, to allow the other side to appear and respond.
Grounds for an Emergency Order
Emergency child custody proceedings are governed by statute in North Carolina. The law specifically requires that a court cannot enter a temporary custody order for a child unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts.
The statute is very clear. The only grounds for a court to grant an emergency child custody order are:
A substantial risk of bodily injury to the child, orA substantial risk of sexual abuse to the child, orA substantial risk that the child may be abducted or removed from North Carolina
When a child is in a situation involving sexual, physical, or emotional abuse, the court will act quickly to get the child to safety. The risk of harm generally must be immediate in nature. The court will also grant the order if the facts demonstrate that the child may be abducted or taken from the state. There are no other grounds on which a court will grant an emergency child custody order.
What Happens If You Get an Emergency Custody Order?
An ex parte emergency order is only a temporary court order. Legal notice to the opposing party is required. The court will hold a merit hearing, usually within 10 days, to allow the other side to appear and respond to the allegations which gave rise to the ex parte order. After the hearing, if the court finds grounds for continued emergency custody, the judge will enter a temporary emergency order. That order will remain in effect until either side moves for a hearing on permanent custody.
Even in situations where you may not be able to get an emergency order, the standard custody process is available to ask the court to determine a custody matter.