When parents begin the divorce process, there are many issues that need to be resolved. Of these, issues regarding the children are of utmost importance and urgency. The process of determining child custody, support and visitation can take months to resolve. In the meantime, children typically live with one parent while the other has some type of temporary visitation arrangement that is agreeable to both parties. However, there are some situations that may allow you to file for emergency custody. An experienced Cornelius attorney can answer your questions and assist you with the process.
Situations of Domestic ViolenceThe legal system does not take emergency custody requests lightly. One of the two circumstances in which emergency child custody may be appropriate is when there is an allegation of domestic violence. If there is a claim of domestic violence, the party is legally authorized to file suit to seek relief through the court system. This filing is known as a 50B complaint.
The person against whom the claim is alleged has a period of 10 days to respond with an answer to the 50B complaint. However, if the child or parent is deemed to be in imminent danger, the law allows you to make a motion for emergency relief through the court. In this case, a hearing will be held no later than five days from the date that the opposing party has been served or given notice.
In some situations, the court may be allowed to proceed with a hearing even when the other party has not been notified. When the court has been provided with evidence that acts of domestic violence have taken place or are imminent, they may determine that the child is in immediate danger. If so, the court will take whatever measures are necessary to protect the child. If it is possible or likely that domestic violence could endanger the child, the court will take action even without the opposing party being present for a hearing. The judge has the right to do what is appropriate to protect the child by providing a temporary custody order ex-parte, without the other party present.
The court may allow contact with the other parent according to rules that are designed to keep the child safe. The judge’s order must detail the rules of contact, which may include a visitation schedule. The schedule may provide information about the dates and times of the visitation, where the exchange is to occur and whether the visitation is supervised. If supervised visits are ordered, the court will mandate the person who is the supervisor and where the supervised visits are to occur. The order will also include any other mandates that are appropriate for the child’s safety and well-being.
After a Temporary Order is IssuedA hearing must be held within 10 days of the date of the judge’s temporary custody ex-parte order or within 10 days from the date the other party is served with the 50B motion. Either party may move for a continuance, however, the court is only required to extend the matter one time for a period of no longer than 10 days unless the parties agree or there is a good reason presented to the court. If the case is continued it is given priority on the next hearing date.
Matters such as these can be complex, and it is helpful to have your attorney represent you throughout the process. However, if you do not have an attorney, the clerk of the court must schedule a hearing no later than three days after the relief is sought or by the end of the next day of district court, whichever occurs first. Some counties do not have district court hours every day, and in these counties a 72-hour hearing is not possible. The person seeking the request may go to any Superior Court within the same district to have the case heard instead.
Once a temporary order is issued, the court will finalize the hearing date. Under some circumstances, the court will serve the order through the appropriate law enforcement agency. A magistrate can fill in for the duties of a district court judge if the district court is not in session and when it would take the district court judge more than four hours to become available for a hearing.
If you are facing a difficult divorce situation that includes domestic violence, we can help. We are here to assist you in obtaining a temporary emergency child custody order to ensure the protection of you and your child. Contact our experienced Cornelius legal team at Arnold & Smith, PLLC today to schedule a consultation.