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Can I get emergency sole custody of my children?

| Jan 28, 2021 | Family Law

If you have a pending divorce or child custody case, you may be able to get a temporary emergency order for sole custody of your children if the circumstances warrant. This is normally possible if you can show that your children are at substantial risk of bodily injury, sexual abuse, or abduction from the state by their other parent. This can be done without a full hearing and is called an “ex parte” order.

An ex parte order is somewhat like a restraining order, in that it is an order meant to temporarily protect children who are in immediate danger. However, there are a couple of important differences:

  • Your children must already be under court jurisdiction or emergency jurisdiction must be granted
  • These orders are typically valid only for 10 days and must be reviewed by a judge to determine if they will remain in effect.

You can typically seek an ex parte order in case of emergency or if there is a need to stabilize your child’s living situation. At first, your children’s other parent will not be given an immediate chance to respond.

An emergency hearing will take place at the beginning of the process. At this point, your attorney will present evidence to a judge to prove that the children are in immediate danger of bodily harm, sexual abuse, or abduction from the state. At the end of the hearing, the judge will issue or deny the ex parte order based on the evidence presented.

When an ex parte order is issued, it can be accompanied by a warrant authorizing the police to take immediate physical custody of the children.

Although an ex parte emergency hearing may not include your children’s other parent, you should be aware that your ex will ultimately get their day in court. Courts generally schedule a hearing to review the order as soon as is practical.

The legislature intended for ex parte orders to be used only in emergency circumstances. In most cases, you can expect a full merit hearing within about 10 days.

How do I get an ex parte order?

There is no legal requirement that you have a lawyer to get an ex parte order, but it is a good idea because the issues are very important, and the process can be complex.

We recommend talking to an experienced attorney as soon as you come to the conclusion that your children are in danger. Your lawyer will help you identify and collect evidence to show that there is imminent danger. For example, you might draft an affidavit stating that your ex has made credible threats in your presence, or you might obtain statements from witnesses.

Keep in mind that ex parte orders are only appropriate in emergency situations. Courts are very reluctant to make even temporary custody changes without giving both parents the opportunity to be fully heard.

If the court determines that there is no emergency, you could be sanctioned. You could, for example, you could be required to pay your ex’s legal fees if the order is ultimately overturned.

In the right circumstances, an ex parte order can prevent a tragedy from occurring. If you believe your children are in immediate danger from their other parent, discuss your situation with an experienced attorney.