While there are frequent instances in life where parents desire to relinquish the custody of their children from each other, they must typically resolve their issues through a consensual method such as through a Separation Agreement (pursuant to a divorce), a Child Custody Consent Order, or through the compelled method of Trial, where a Judge will resolve the issue. (To learn more about the standard Child Custody Process, read our Child Custody in North Carolina Blog.) Any of these standard Child Custody Dispute Resolution methods can take several months to conclude, especially when litigation is involved. However, in some situations, a parent may be able to obtain an Ex Parte Temporary Emergency Child Custody Order. (Ex Parte means a Court hearing from only one party). This process occurs much faster than the standard dispute resolution methods due to the urgent nature of Emergency Child Custody, but this process only produces Temporary Child Custody Orders. No Permanent Child Custody Orders will be issued in this process.
North Carolina General Statute 50-13.5(d)(3) permits the District Courts to grant Emergency Child Custody Orders in situations where a Court finds that a child is: (1) exposed to a substantial risk of bodily injury; or (2) sexual abuse; or (3) that there is a substantial risk that a child may be abducted or removed from North Carolina for the purpose of evading the jurisdiction of North Carolina Courts (also known as Child Snatching). When considering category (1), a risk of Substantial Bodily Injury may be found when there is excessive corporal punishment of a child, use of illegal drugs by a custodial parent that impairs their parenting, domestic violence and other scenarios. Category (2), a risk of Sexual Abuse, can arise in a multitude of incidents. These incidents require a report to Social Services for Investigation. Category (3), a risk of Child Snatching arises when there is a substantial action of either parent or guardian moving a child to another state or country or a substantial and believable threat that the child is about to be removed from North Carolina or the United States.
Generally, the party moving for Emergency Custody must file a written Motion for Emergency Child Custody with a County District Court of appropriate Venue and Jurisdiction per the North Carolina Rules of Civil Procedure (NCRCP). After this, the moving party must attempt to serve process of the Motion on the defendant in accordance with the NCRCP. Next, the Court will either issue an Ex Parte Emergency Child Custody Order based upon the information contained in the Plaintiff’s written Motion, or the Court will schedule an Ex Parte hearing on the Motion where the Plaintiff will put on evidence and the Court will either grant or deny the entry of an Ex Parte Order in the Defendant’s absence. If the Court issues an Ex Parte Order vesting Emergency Custody with the Plaintiff, the Court must hold a hearing within 10 days after the issuance of the Ex Parte Order where the Court will hear from both the Plaintiff and Defendant who will present evidence for the Court to determine whether to grant a Temporary Child Custody Order. If no Temporary Child Custody Order is granted, the initial Ex Parte Order expires. Finally, in some situations, pursuant to an order the Court can order law enforcement to take physical custody of a minor child to return the child to the Plaintiff, so long as the order is accompanied by a warrant to take physical custody of the minor child. When pursuing Emergency Child Custody, always consult with the Local Rules of Court for your County because the rules for conducting Emergency Custody Proceedings vary between counties in the state. However, all counties require the 10-day hearing after the entry of an initial Ex Parte Emergency Child Custody Order by statute.
If a Temporary Child Custody Order is granted after the 10-day hearing, the order will typically remain in place until the issue of Permanent Child Custody is determined through one of the standard methods of resolving Child Custody Disputes as mentioned above and in our
This blog was a brief overview of the Emergency Child Custody Process in North Carolina and is not to be construed as legal advice. We strongly encourage parties with Child Custody issues to seek the advice of a licensed Family Law Attorney.
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