Emergency Child Custody

The legal process can take months, if not years when a party initiates a claim over the custody of his or her children in Union County. In some scenarios, the parents may decide to agree upon a temporary or permanent child custody arrangement outside of the courts regarding parenting time. If one or more claims are filed for temporary and/or permanent custody by a parent, the court will hold one or more hearings to address the children’s schedules with the parents. Because court calendars are often overburdened, it can take longer than expected to obtain a court hearing, even to address temporary custody arrangements. That being said, there are two instances in which a hearing can be significantly expedited, and custody can be determined by a court of law - in cases of domestic violence and emergency custody.

The standard by which a North Carolina court must make a decision on any family law matter is to always consider the“best interest of the child.”

The first scenario under North Carolina law in which emergency custody can be determined is in the criminal court when one party alleges that the other party’s actions rise to the level domestic violence, and this harm has been committed against the moving party or the children under the other party’s custody. Under this scenario, a motion for temporary relief for emergency custody may be filed under the law. Known as a 50B, this authorizes one party to file a lawsuit and proceed with legal representation or without (known as pro se) to seek relief. The person against whom the 50B is filed has 10 days from the date of service to answer the complaint.

Should the movant allege a danger of real and imminent injury to themselves or the minors on whose behalf the complaint was filed, the law allows the movant to move for emergency relief. Hearings on these types of emergency motions are generally held the earlier of five days after the other side is given notice or was served.

In some cases, a court may hold a hearing on a 50B motion before the other party is aware (referred to as an “ex parte” hearing). An ex parte hearing may occur when the court is made aware of specific facts that show the danger is sufficient to show that domestic violence may happen against the movant or the minor child/ren. In such a scenario, the court may respond in any manner it deems appropriate to protect the person or child/ren. If a serious probability that physical or emotional injury or sexual abuse may occur is presented to the court, the judge may enter a temporary order for custody without the alleged abuser (or, an ex parte temporary custody order).

The second scenario under North Carolina law in which emergency custody can be determined is in the civil court. Ordinarily in a civil action for annulment, divorce, or alimony without divorce temporary orders that require a change in child custody or living arrangements are not entered ex parte (or without notice and/or service to the other side). There are, however, limited circumstances in which emergency custody may be granted by a North Carolina family court.

One situation in which emergency custody may be granted is when the child is faced with a substantial risk of sexual abuse or bodily injury. The statute is silent on what meets the definition of bodily injury, although the law addresses assault and serious bodily injury, but not just bodily injury. Consequently, it is a question of fact that is left to the discretion of the court. In regard to the definition of sexual abuse, North Carolina’s statute is similarly silent. Acts that would result in criminal liability under the law such as rape, statutory offenses, and indecent liberties would provide a sufficient basis that the risk of sexual abuse exists. However, there may be others that do not fall under the criminal statute. Thus, as with bodily injury, the court has discretion to determine whether or not the risk of sexual abuse exists based on the facts of the case at hand.

A second circumstance in which emergency custody may be granted is when a child is facing substantial risk of a purposeful abduction or removal from the state of North Carolina in an effort to circumvent the state’s jurisdictional reach over the child and the family law case. In other words, being out of the state for a week is not enough. There must be an intentional removal - or risk of removal - of the child, done purposely so that North Carolina loses jurisdiction. Should the court find sufficient evidence that this possibility exists, it may order the aggressor to remain away from the minor, return the minor to custody of the other parent or person acting as parent, or not remove the child from the custody of the non-aggressor parent or supervisor.

Any scenario that may put a minor child at risk of sexual abuse, physical injury, or abduction is one that is taken quite seriously by North Carolina courts and legislators. If you or someone you know feels that a child may be in danger, or that court intervention is necessary due to a true emergency, contact Arnold & Smith, PLLC right away. The same is true if you are facing allegations against you in Union County regarding your child. We can help you confront the issue immediately and use the fastest legal process to get the matter resolved.