Emergency Child Custody

When parties initiate a claim over the custody of their children, the litigation process can take months, if not years. Sometimes, parties make temporary and/or permanent arrangements outside the courts regarding parenting time with the children. If claims are filed for temporary and/or permanent custody, hearings are held to address the children’s schedules with their parents. Court calendars are often quite saturated and thus scheduling hearings, even for temporary custody arrangements, can prove frustrating and take longer than expected. However, there are two instances where things can be expedited significantly, and “emergency custody” can be determined.

The first involves situations where a party alleges that actions which rise to the level of domestic violence have been committed against either themselves or children they have custody of or who live in their home. If such circumstances exist, N.C.G.S. § 50B-2(a) authorizes that person to file suit and proceed with or without legal representation to seek relief through the courts. Whomever said claim is filed against, he or she has ten days of the date served with the 50B complaint to answer.

If the complainant alleges a danger of real and imminent injury to either the person applying for the court’s protection or the minor child they care for, the statute allows them to make a motion before the court for “emergency relief” according to N.C.G.S. § 50B-2(b). Hearings on such motions are held either five days after the opposing party is given notice or five days after the opposing part is served, “whichever occurs first.”

The law provides that in certain situations, the court can hold hearings on 50B motions even if the other party is unaware of the hearing. If the court is made aware of specific facts showing that the aforementioned danger of acts sufficient to constitute domestic violence may occur against the movant or the minor child, then the court may respond in whatever manner it deems is appropriate to protect the person or the minor child. N.C.G.S. § 50B-2(c)(1). If it is found that a serious possibility exists that the child will be faced with physical or emotional injury or sexual abuse, N.C.G.S. § 50B-2(c)(2), then a judge may enter “[a] temporary order for custody” without the alleged culprit/abuser receiving notice of the hearing. Such an order is called a temporary order for custody ex parte.

If the court finds the above possibility exists, it may respond by ordering, in the best interest of the child and due to its necessity to keep the child safe, the aggressor to stay away from the child, return the child to the custody of the parent or person acting as the parent, or not take the child away from that supervisor or parent. N.C.G.S. § 50B-2(c)(3).

If the court determines it is in the child’s best interest to be allowed contact with the person from whom protection is sought, the court shall design an order built around the “safety- and well-being” of the child and the moving party. N.C.G.S. § 50B-2(c)(4). That order is required to outline the rules for contact, and may set forth a visitation schedule delineating times and places of exchange, whether the visitation is supervised (and by whom and where), and any other conditions that will ensure the safety and protection of both the child and the moving party. N.C.G.S. § 50B-2(c)(4).

A hearing must be held within ten days after the date the judge orders a temporary custody ex parte order, or within seven days from the date the other party is served with the 50B motion, “whichever occurs later.” N.C.G.S. § 50B-2(c)(5). In the event either party moves for a continuance, the court is required to only extend the matter once, and for no more than ten days, unless the parties agree or a good reason is presented to the court. If the case is indeed continued, it is given priority on the next date. N.C.G.S. § 50B-2(c)(5).

If the party seeking the ex parte protection of the court acts pro se (i.e. represents themselves) the clerk of superior court must schedule the hearing no later than three days after the relief is sought or by the end of the next day of district court, “whichever shall occur first.” The reason for the latter portion of this requirement is not every county in North Carolina has district court every day of the week (and some do not have court but once a week), and in those counties a hearing within 72 hours may not be possible. N.C.G.S. § 50B-2(c)(6). For those counties which do not meet frequently but are part of a multi-county prosecutorial district, the party seeking the ex parte relief may go to any other clerk of Superior Court in any of the other counties in the same district and seek to have their case heard in that county instead (subject to the same time restrictions, of course). N.C.G.S. § 50B-2(c)(6).

If a temporary custody ex parte order is issued, and the aggrieved party is proceeding without a lawyer, then the court will finalize dates for the upcoming hearing, and take care of the other administrative duties by serving the defendant “through the appropriate law enforcement agency[.]” N.C.G.S. § 50B-2(c)(7).

However, chief district court judges are able to delegate their authority to magistrates to hear any motions pertaining to the ex parte relief. However, before doing so, the magistrate must determine two things: first, that district court is not in session and second, that it would take a district court judge more than four hours to be available to hear the matter. N.C.G.S. § 50B-2(c1). Essentially, the magistrate acting in that capacity (as a substitute for the district court judge who would normally hear the matter) can act as the judge would, except they must first find a substantial risk exists for physical or emotional injury or sexual abuse before they are authorized to issue the ex parte custody order before service of process has been accomplished or notice given to the other party. N.C.G.S. § 50B-2(c1).

The second situation involves a Motion being made under North Carolina Gen. Stat. § 50 (as opposed to § 50B, discussed above). In a civil action, action for annulment, divorce, or alimony without divorce (either by motion of a party or by the court’s motion), ordinarily temporary orders which would force a change in custody or change where the child resides are not entered “ex parte”, without notice and/or service to the other party. However, in extremely limited circumstances, pursuant to N.C.G.S. § 50-13.5(d)(3), “emergency custody” can be granted.

The first situation involves the child being faced with a “substantial risk of bodily injury or sexual abuse.” As for what constitutes bodily injury, the statue is silent, and other areas of law give little indication as to what is specifically required. For example, in criminal law charges exist for someone who commits an assault that lead to “serious injury” as well as “serious bodily injury,” but none that require just “bodily injury.” (See North Carolina Gen. Stat. § 14-33(c)(1) and § 14-32.4, respectively). However, as is the case with “physical injury” in misdemeanor child abuse cases, any contact which leads to bodily pain would arguably suffice. Ultimately, whether bodily injury has been satisfied is a question of fact left to the Court’s discretion.

As for what satisfies the sexual abuse requirement, the statute too remains silent. Clearly those acts which would also subject one to criminal liability pursuant to N.C.G.S. § 14, such as rape, statutory sex offenses, and indecent liberties, for example, would give the Court a sufficient basis to find such a risk exists. However, as is the case with bodily injury, the decision is left, based on the facts and circumstances, in the Court’s discretion.

The second situation involves the child being faced with a “substantial risk” of abduction or removal from North Carolina, done purposely to get around North Carolina exercising jurisdictional reach over the case and child. Simply being out of town for the week would clearly not suffice; the key in these situations is the intentional removal (or risk thereof) of the child, done purposely to circumvent jurisdiction.

Clearly, any situation which poses a risk of physical injury, sexual abuse, or abduction to a minor child is one that the Courts (and the Legislature) takes extremely seriously, and that is reflected in the provision of Chapters 50B and 50. If you feel that your child is at risk, or you need the Court’s intervention in a case where a true emergency exists, please contact Arnold & Smith, PLLC immediately at (704) 370-2828 so we can help confront the problem immediately. Likewise, if someone has gone to Court and made allegations against you, we are prepared to fight to defend your rights as well.