Emergency Modification of Child Custody Awards
When an emergency arises, courts in any State have the power to enter a temporary order of custody under the Uniform Child Custody Jurisdiction and Enforcement Act. Under the Parental Kidnapping Prevention Act, the court in the state where the child lives has primary and continuing jurisdiction over the custody of a child, and it may issue a permanent change in custody, whether or not there is an emergency.
Ex Parte Orders
When an emergency occurs, such as when a child on vacation with a noncustodial parent has an unfortunate accident necessitating hospitalization or when the noncustodial parent learns that the local social services agency has removed another child from the custody of the custodial parent, the noncustodial parent can seek an emergency order changing custody of a child. If a parent finds out that the other parent is planning to wrongfully take the child out of the country with an intent not to return the child, the court can not only issue a temporary custody order, but may also issue a restraining order to prevent the removal of the child until a full custody hearing can be held.
A parent seeking an emergency change in custody has a duty to notify the other parent as soon as possible. Parents represented by attorneys should also notify the attorney. Even when the other parent is not given notice prior to the request being made or is unable to attend an emergency hearing, the court may have a hearing with only one parent being present, an ex parte hearing, and, if necessary, issue a temporary order of custody that modifies an existing order. Where there is an ex parte hearing, the parent with custody must be notified immediately as to what happened and must be given an opportunity to contest the decision.
In addition to ex parte hearings, a court may permit the parties to have a hearing on an emergency basis. At such a hearing, one of the parents could consent to a temporary change of custody to deal with an emergency. In the alternative, the court will hear testimony from both parties and may consider documentary evidence, such as copies of court proceedings, medical reports, home study reports, or protective orders. In an emergency situation, the court only needs reasonable grounds to believe that a temporary order changing custody is necessary to protect the child. A more substantial showing of change of circumstances affecting the child is required where the court is considering a permanent change of custody.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.