Emergency Custody (Ex-Parte)
Emergency Custody can be granted Ex-Parte when one party has sufficiently alleged that:
(1) the children are exposed to a substantial risk of bodily injury or sexual abuse if left in the care of the other parent, or (2) the other parent has threatened to remove the children from the jurisdiction of North Carolina in an attempt to evade the jurisdiction of North Carolina.
“Ex-parte” is a Latin term that, in this context, means the Court only hears from one party. One party filed a custody lawsuit claiming one of the two factors above and the Court entered an order giving them custody without hearing from the other party. Because this is exceptional and is supposed to be reserved for true emergencies, the parent who such an order is entered against is entitled to a hearing within 10 days for the Court to determine whether the emergency order was justified and whether or not it should stay in place, be dissolved or be modified. Since that is a very short period of time to hire a lawyer and be prepared for a hearing, you will likely be given one continuance in order to hire a lawyer and be ready for a hearing. If you have such an order entered against you, I would recommend in the strongest possible terms that you hire a lawyer prior to having such a hearing.
What qualifies as a “substantial” risk of bodily injury or sexual abuse is up to your judge, so we will need to discuss your circumstances and make a judgement call based on all available information. If a parent is threatening take the children and run, or to suddenly change the status quo (such as saying “I’ve decided that I will be taking the children and moving to California on Monday”) then we also have avenues for emergency relief. Sometimes this decision is quite straightforward, and other times it is not.
If you desire to seek emergency custody, then you need to prepare to explain to me in your consultation what the emergency is and what evidence (such as testimony, photos, videos, records, text messages, etc.) there is that we can use to prove that an emergency exists in Court within 10 days.
If you are defending against a motion for emergency custody, then we need to discuss what has been alleged against you as soon as possible so that we can determine and gather what evidence exists that would refute the notion that the children are in danger in your care, and that would show the Court what facts and circumstances are important for the Court to hear that the other parent has chosen to leave out.