In custody cases, an emergency custody hearing is held when a non-custodial parent (or sometimes a third party) files a petition stating that custody should be modified, and that some emergency exists which requires that a hearing be held immediately. This blog examines how Indiana courts define “emergency” as it pertains to child custody cases and what may happen once a petition for emergency custody is filed.
In rare cases, the court may grant a petition for emergency custody, ex parte, which means without notice to the non-filing party, or without an opportunity for the non-filing party to respond. If an ex parte custody order is issued, it will grant the filing party only temporary custody, until the other party receives notice and a hearing can be held. More often, after a petition for emergency custody has been filed, the court will hold a hearing within a few days. At which time it will either grant or deny the change of custody until a full custody modification hearing can held, when the court has more available time. The court could also find that no emergency exists and either deny the petition completely or set the matter for hearing on a non-emergency basis, which can oftentimes take weeks.
When requesting an emergency custody hearing, a party must first allege that there is an emergency which makes it necessary for an immediate decision on a custody change to be made. What constitutes an emergency to a parent, however, may not constitute an emergency to the court. An emergency generally means that the child is in some type of danger in the current custody situation. This may be due to the custodial parent’s mental health, substance abuse, or incapacitation (incarceration, hospitalization, etc.) or neglect or abuse of the children in the custodial parent’s home.
Second, because an emergency custody hearing is simply a custody modification hearing, held much sooner than is usual, the party seeking the modification must prove that a change of custody is in the best interests of the child. The factors to be considered in determining the best interests of the child include: (1) The age and sex of the child. (2) The wishes of the child's parent 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.
Lastly, if a prior custody order exists, the filing party must also allege and prove that there has been a substantial change in one or more of the above listed factors.
An emergency custody hearing proceeds the same way as a non-emergency custody hearing, except that because of the emergency nature of the hearing, the court will usually have to squeeze the hearing in, giving the parties far less time than normal. Because of this, and the additional burden of proving an emergency, these hearings can be difficult to win, and you should consult with one of our attorneys before requesting or attending an emergency custody hearing.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. It is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
