When couples divorce, sometimes the need for the children to be removed from the home of a parent is immediate. There is no time to wait and see how the custody process will play out. In these instances, the other parent can file for emergency custody. Both the process and the requirements vary amongst states, but there is some general information any person thinking about taking this path needs to know.
Grounds for Request
Emergency custody is not taken lightly. Parties must have a valid reason to submit this request. Generally, the child needs to be the victim of or at risk for bodily injury, emotional harm, sexual abuse, or kidnapping, in the form of removal from the area in which both parents agreed the child would reside.
A parent cannot request this custody in the case of a parent who made a disparaging comment about the other parent. Although the court does frown upon this behavior, it does not constitute an immediate threat. It is best to explain your concern with an attorney to see if you can move forward.
Duty to Prove and Protect
You must be able to prove what you are accusing. This proof often comes in the form of an affidavit, evidence of injuries, or sworn statements from children, teachers, or other care providers. The court reviews this information to determine its validity.
You also need to prove that you can protect the child. A parent who is not stable, in terms of their living situation, can generally not make this request. While the child would be removed from the other parent, the court would not likely put them in the custody of a parent it deems unfit.
The decision is temporary. Emergency custody judgments often have a rather short expiration, somewhere around the two-week mark. At the end of the period, you will be required to reconvene in court.
You and the other parent will then have the opportunity to provide new evidence and make a formal demand for how you want to move forward. An attorney can help you with evidence collection. The judge can then award you full custody, separate from the divorce agreement, or reschedule a future date to review custody again.
If you are in the middle of a separation or divorce and you want to file for emergency custody, you should consider partnering with a child custody attorney.