Emergency Custody: When Can I Get It (or When Can I Not)?

Emergency Custody: When can I get it (or when can I not)?

As a parent, your child’s safety and well-being are your top priority. But what happens when you find yourself in a situation where your child is in immediate danger, and you need to take action to protect them?

In North Carolina, one option is to seek emergency custody. But what exactly is emergency custody, and when can you get it?

In this blog post, we’ll explore the ins and outs of emergency custody in North Carolina, including what qualifies as an emergency situation, how the process works, and what factors the court will consider when deciding whether to grant an ex parte order.

Whether you’re facing a sudden crisis or simply want to be prepared for any eventuality, this guide will provide the information you need to make informed decisions and protect your child’s best interests. If you need additional help, reach out to a child custody lawyer at Apple Payne Law today.

Can I Get Emergency Custody?

That’s a question we answer on an almost daily basis. North Carolina, like most states, very strictly controls emergency custody. Unfortunately, almost 90% of the time, the judge would NOT grant emergency custody.

Under NCGS §50-13.5(d)(3), the Court can grant emergency custody (also called an ex parte order) if the child is in immediate danger of physical or sexual harm or the child is in danger of being taken out of the state and not returned.

In general, Judges do not like to grant emergency custody because it means they only have heard one side of the story. Both parents are entitled to a right to parent their child, so taking the child away from the other parent without a child custody hearing violates that right and requires an immediate hearing.

If the Court grants emergency custody, a hearing MUST be scheduled within ten days to allow the other parent to be heard.

How to File an Ex Parte Order in North Carolina

To file for emergency custody in North Carolina, follow these steps:

  1. Contact a lawyer. A family lawyer can help you navigate the legal process and ensure you meet all the requirements.
  2. Assess grounds for emergency custody. Ensure the child is at immediate risk of harm or removal from the state.
  3. Gather documents. Collect supporting evidence, such as existing custody orders or proof of abuse.
  4. Complete forms. Obtain and fill out emergency custody forms accurately.
  5. File the petition. Submit forms and documents to the appropriate county clerk of court.
  6. Request an ex parte hearing. Apply for a temporary hearing without the other party present. Attend the ex parte hearing and present your case to the judge.
  7. Serve the other party. Notify them of the order and scheduled hearing.
  8. Prepare for the full hearing. Gather additional evidence and consider hiring a family law attorney.
  9. Attend the full hearing. Present your case and allow the other party to present theirs.

Remember that emergency orders are temporary and typically only granted in urgent situations. If you believe your child is at risk, work with an attorney to help you protect your child’s well-being.

How Long Does It Take to Get Emergency Custody?

The process for getting custody will depend on various factors, including the urgency of the situation, the court’s schedule, and the availability of a judge to hear the case.

However, if the child faces an immediate risk of harm, the court may expedite the process. In these cases, the judge may grant custody within 24 to 48 hours.

If I Can’t Get Emergency Custody, What Can I Do?

Even if a Court will not grant emergency custody, that doesn’t mean you have to wait six months to get in front of a judge.

At Apple Payne Law, our family law firm typically handles cases where it doesn’t justify true emergency custody, but it is a true, urgent situation (perhaps a parent is withholding visitation for over a month or is making rapid, negative changes) as follows:

  1. We file for child custody and allege all of the important, urgent facts.
  2. We ask the court in our filing to waive mediation due to urgent, negative circumstances.
  3. We immediately calendar the motion to waive mediation and for temporary custody within 30 days of the filing.

If a parent requests more time to respond but withholds the child, the judge may issue a temporary order allowing equal contact or visitation for the non-custodial parent.

At worst, the judge can read the parent withholding the child “the riot act” about misbehaving regarding the other parent’s rights, which lays the basis for an order in favor of the other parent, attorneys fees, and/or sanctions as appropriate.

Take Charge — Contact Apply Payne Law Today

Emergency custody is tricky, especially if you aren’t the mom or dad (i.e., grandparents or relatives), and we strongly urge you to meet with an attorney to discuss your options.

At Apple Payne Law, our child custody lawyers do regular consultations, or if it is an emergency and there’s short notice, we would be glad to discuss your situation with you and determine if an expedited custody filing or a more standard custody approach is best for you.

If you’d like to schedule a consultation with our firm to see how we can help you represent yourself, contact us today!

Author Bio

Ronald D. Payne II
Ronald D. Payne II is the CEO and Managing Attorney of Apple Payne Law, a North Carolina law firm he founded in 2018. With more than 11 years of experience practicing law, he is dedicated to representing clients in a wide range of legal matters, including business law, estate planning, family law, probate, and traffic law.

Ronald received his Juris Doctor from the Wake Forest University School of Law and is a member of the North Carolina Bar Association. He has received numerous accolades for his work, including being awarded the 2020 Client’s Choice Award by Avvo and multiple Rising Star awards from Super Lawyers.

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