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Non-Secure Custody Hearing

The Juvenile Court System has a long list of terms and acronyms that are not familiar to parents. One of the most important terms for parents to know is “nonsecure custody” or “temporary custody”. If DSS believes that children are in danger in their current living environment, DSS has the power to remove children from their parent or caretaker’s care. While it often happens in the beginning of a case, DSS can remove children at any point. As a parent attempting to navigate the complex DSS system, it is important to note that DSS is bound by certain requirements and time limitations before DSS can remove the children and for how long the children may be removed.

DSS can assume “temporary custody” of children without notice, hearing, or even a court order. Temporary custody should only be used briefly when it is necessary to protect a child while a petition is filed and a court order for nonsecure custody is being sought. The only way DSS can assume temporary custody of a child if there are reasonable grounds to believe that (1) the child is abused, neglected, or dependent and (2) the child would be injured or could not be taken into custody if it were first necessary to obtain a court order. As a parent, this can be truly scary. However, a child cannot be held for more than twelve hours, or twenty-four hours if it falls under a Saturday, Sunday, or holiday UNLESS a petition has been filed and a court order for nonsecure custody has been issued.

If DSS still believes that a child is not safe in his or her home environment, but there are not grounds for temporary custody, DSS will still apply for a “nonsecure custody order” in order to temporarily remove the child from his or her home. As a parent, you are not present when DSS initially requests a judge to grant a nonsecure custody order. The Judge only relies on the allegations presented by DSS. Before entering a nonsecure custody order, the judge must make certain findings. The judge must find that (1) DSS has filed a petition in which the child is alleged to be abused, neglected or dependent; (2) there is a “reasonable factual basis” to believe that the allegations in the petition are true; and (3) the child has suffered an injury or sexual abuse, exposed to a substantial risk of physical injury or sexual abuse because the parent or caretaker has created those circumstances; the child was abandoned; or the child is in need of medical treatment to either cure or alleviate suffering from a serious medical condition. If a nonsecure custody order if issued, a parent will come back in front of a judge to explain why the child should be returned. Pursuant to North Carolina law, this hearing must take place within seven days. If the Judge continues the order, parents will come back for further hearings to continue to evaluate as to whether the child should remain in nonsecure custody. At each hearing, DSS must show the Judge that the it is necessary for the child to remain out of his or her parents’ or caretaker’s care. As a parent, you are permitted to present evidence and provide testimony as to why there is no longer a need for the child to be out of your care. The court is also required to consider whether there is a family member who would be both appropriate and willing to assume the care of the children until the next nonsecure custody hearing.

When the Department of Social Services becomes involved in your family’s life, the process is both long and arduous, filled with rules and unfamiliar terminology. The lawyers at Arnold & Smith, PLLC have a great deal of experience dealing with temporary custody and DSS matters and are ready to help you navigate this stressful and confusing time. For help with this or any other family law matters contact us or please call (704) 370-2828. You can also click here for additional resources.