Emergency custody hearings in Indiana may be set within a couple to a few days of you receiving notice, so the search for an attorney to represent you must be completed very quickly. However, a quick search does not mean you will have to, or should, settle for representation that is less than experienced and equipped to handle your emergency hearing. It may take a lot of phone calls and leg work, but you can find counsel if you work hard at this task.
There are generally two types of emergency custody hearings – CHINS detention hearings and emergency change of custody hearings set by a court based on an allegation of one of the children’s parents that the children are in extreme risk. The latter could also be filed by a guardian, or a third party, such as a grandparent, if they have standing to do so. These two types of custody hearings are very different from each other; and some attorneys may handle one type of hearing, but not the other. First, you will want to be clear about which type of “custody” hearing has been scheduled to narrow down the list of possible attorneys that can represent you.
You will also need to make sure that the attorney you choose has the skills and experience required to handle an emergency custody matter. While almost all paternity and divorce lawyers will have some experience with CHINS matters and emergency custody modification requests, emergency situations can be more complex, and emergency hearings do not generally get the same amount of time (i.e., they are set for a short time), since they get scheduled so quickly. That makes it very important that you look for an attorney who specifically handles emergency matters.
You can generally find a list of the types of cases an attorney or law firm that handles emergencies on their website, under practice areas or something similar. Most attorney websites also include information about various legal topics in a blog or news sections of their site. If you see a lot of good quality articles and information about emergency custody hearings on an attorney’s website, they may be a good choice to represent you at your emergency hearing.
While looking for an attorney to handle your emergency custody hearing, keep in mind that attorneys who handle emergency matters may not be available for your hearing or even be able to meet with you before the hearing, as they may have other emergency matters to tend to. This means that once you locate an attorney experienced with emergency custody cases, you will want to contact them right away to see if their schedule will allow them time to prepare for and attend your emergency hearing if it cannot be continued. Very rarely are emergency hearings rescheduled or continued, as some type of emergency requiring an immediate hearing has been alleged and the court must act quickly to ensure that the child is not in danger.
Once the original danger to the child has been addressed, the court will conduct further full evidentiary hearings and make decisions based on the children’s best interests. When making a custody decision, the court considers all relevant factors, including those listed in Indiana Code 31-17-2-8: (1) The age and sex of the child. (2) The wishes of the child's parents or parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.(4) The interaction and interrelationship of the child with: (A) the child's parent or parents; (B) the child's sibling; and (C) any other person who may significantly affect the child's best interests. (5) The child's adjustment to the child's: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. (9) A designation in a power of attorney of: (A) the child's parent; or (B) a person found to be a de facto custodian of the child.
While these factors are also considered in an emergency hearing, the time constraints of an emergency hearing may prevent submitting evidence on all these factors. However, an experienced attorney will know how to best allocate your time and know the evidence you need to present at an emergency hearing based on allegations. In addition, depending on the facts of the situation, you may be well advised to assert your Fifth Amendment privilege if testimony would put you in criminal jeopardy.
This blog was written by attorneys at Ciyou & Associates, P.C., who routinely handle emergency matters. This blog is for general educational purposes. This blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.