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How to Get Emergency Custody of a Minor

Posted by LEISA WINTZ | Jan 23, 2023 | 0 Comments

Father and Daughter

There are many situations where one might need to file an emergency motion with the court concerning a child's welfare.  An emergency motion for immediate custody of a child can only be filed if there is a genuine crisis issue at stake concerning a child. Keep reading to learn in which cases it's possible to file an emergency custody order and what do when it's denied.

When can I file an emergency custody order?

Filing an emergency motion for immediate custody can only be done in the case of genuine concern for the child's wellbeing.

This normally happens in the following cases:

  • One parent has removed the child from the legal custodian or the legal parent without permission,
  • A parent has the child in his or her custody pursuant to a parenting plan, but is putting that child in danger in some way during their time-sharing schedule,
  • A father who was never married to the mother and who has not established his rights to the child but has taken custody of the child without the mother's permission.

How do I file an emergency motion for immediate custody?           

Whatever motion is filed, it will have to be verified by the person filing it (the Petitioner) by signing the motion before a notary public. When the motion is filed with the clerk of the court, there is a box to check that indicates that the motion is an emergency. That way the clerk knows to immediately send it to the judge for that judge to determine whether it's a true emergency situation or not.

Details of what has transpired are included in this motion for a judge to discern whether your motion is truly an emergency and warrants immediate action.

That discernment is based on certain criteria which has to be met, such as:

  • There is a credible risk of imminent physical, emotional or psychological harm to the child.
  • There is a threat of child abduction or removal of the child from the jurisdiction of the court.
  • If the parent who has the child in custody is behaving in such way that it puts the child at risk.

If it is deemed to be an emergency, based upon the criteria mentioned above, the judge will set a hearing on the motion as soon as his or her docket allows. The judge is the one who sets the hearing so the petitioner must be ready to appear on the date and time indicated by the judge by way of an order or notice of hearing, and any opposing party (Respondent) must be served with both a copy of the motion and the notice of hearing.

How should I proceed if the judge denies the motion?

If the judge determines that it is not a true emergency, he or she will deny the motion insofar as it being an “emergency,” at which time it will be the responsibility of the petitioner to contact the judge's judicial assistant to request a hearing date for the motion.  Again, the Respondent will need to be served with a copy of the motion and the notice of hearing so he or she can appear in court and respond to the motion.

If you are facing a crisis that requires the immediate custody of a child, our office has extensive experience with child custody cases. Contact our office for a free consultation.

About the Author

LEISA WINTZ

Leisa Wintz originally began her career as a marriage and family therapist. Ms. Wintz went on to attend law school and started practicing family law in 2009. However, she quickly realized that many family law practices lacked the empathy and compassion she believed were necessary in order to achi...

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