Emergency child custody orders in Indiana are orders that may be issued by the juvenile court after the Department of Child Services has alleged that a child is a child in need of services (CHINS) and his or her physical or mental health may be endangered if not immediately taken into protective custody. A temporary custody modification order, issued after a parent has filed an emergency petition to modify custody, may also be referred to as an emergency custody order. This blog explores both types of emergency child custody orders in Indiana and when and how they apply.
If the department of child services requests authorization from a juvenile court to file a petition alleging that a child is a child in need of services, and the petition is authorized, it may then request an order for removal of the child, under I.C. 31-34-9-5. This order is generally titled “Emergency Custody Order” and allows the department to take custody of the child pending a detention hearing, to be held within 48 hours (excluding weekends and legal holidays) of the child’s removal. The department may take a child into custody without a court order under I.C. 31-34-2-3 if it has probable cause to believe that the child is a child in need of services and it appears that the child's physical or mental condition will be seriously endangered if the child is not immediately taken into custody, there is not a reasonable opportunity to obtain court order, and safety considerations preclude the immediate use of family to prevent the child’s removal. When a child is removed from his or her home without a court order, a detention hearing will be held within 48 hours of removal, just as in the case of a child removed pursuant to a court order. While there is technically no child custody order at the time of the child’s removal from his or her home under this statute, many parties will refer to the removal as an emergency custody order.
I.C. 31-34-1 provides a fairly exhaustive list of circumstances under which a child may be considered a child in need of services. This list includes the inability or refusal of a parent to supply the child with necessary food, clothing, shelter, medical care, education, or supervision, failing to participate in school disciplinary proceeding, depriving a disabled child of necessary nutrition or medical or surgical intervention, and many other offenses committed by either the child, a pregnant mother, or a person residing in the home with the child. The detention hearing provides parents with an opportunity to present testimony and other evidence that the child is not a child in need of services and request that the child be returned to the home. Parents have a right not to incriminate themselves at the detention or any other hearing held in a CHINS case, as well as the right to be represented by an attorney. In most situations, these are both rights which should be exercised.
The other type of custody order, commonly referred to as an emergency custody order in Indiana, is a temporary custody order issued after a non-custodial parent files a petition to modify custody, alleging that an emergency exists which may result in substantial harm to the child’s mental or physical health if custody is not immediately modified. The court will generally proceed in one of three ways when a custody modification is requested on an emergency basis; 1) set a hearing within the next few days in order to determine if an emergency does in fact exist, and if one does, modify custody temporarily until a full custody hearing can be held, 2) find that, based on the petition, no emergency exists, and set a custody hearing following the procedure and time frame for all standard custody modifications, or 3) find that, based on the petition, an emergency exists, and temporarily modify custody ex parte, without hearing or notice to the other party, then schedule a full custody hearing as soon as possible after issuing the order. Courts in Indiana are not inclined to issue ex parte orders, except in some protective order cases, and most often will opt for option one or two. If custody is temporarily modified without a hearing or with a hearing on the existence of an emergency only, the court must give priority to the setting of a custody hearing (I.C. 31-17-2-6).
In order for the court to find that an emergency exists necessitating a custody modification without a custody hearing, it must be a true emergency of the type that will cause the child irreparable mental or physical harm if custody is not modified immediately. This could include the custodial parent’s attempted suicide or arrest, a sex or violent offender moving into the child’s home, an incidence of domestic violence in the home, or the custodial parent’s hospitalization. Each situation and family is different and the existence of an emergency is made on a case-by-case basis. However, disputes over holiday schedules, the child’s extracurricular activities, or the person the custodial parent is dating are never considered emergencies by Indiana’s courts. These are common areas of contention between parties raising children from two separate households and a custody modification based on such an issue will not be granted on an emergency basis.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.