In some situations, a concerned parent or other individual may petition the court for an emergency hearing to grant an order regarding custody or visitation rather than wait for the next available hearing date on the docket. However, such hearings are limited to those situations in which a true emergency is at stake.
Circumstances Giving Rise to Emergency Hearings
State laws vastly differ in regard to situations that give rise to emergency hearings. Many states require emergency hearings only to be held in cases in which the child’s health or welfare is in danger. Circumstances such as child abuse, child neglect, substance abuse in the child’s presence or the presence of a sex offender in the home may justify an emergency hearing. Also, if the parent is facing conviction of a serious and violent offense, an emergency hearing may be possible. In some jurisdictions, a parent’s complete refusal to allow visitation is seen as grounds to request an emergency hearing.
Minor disputes regarding visitation or other insignificant issues do not usually meet the threshold necessary for emergency relief. If a person is not obeying an existing court order, the remedy is usually to ask for that parent to be held in contempt of court.
Before an emergency hearing will be granted, the parent must petition the court for a hearing and the relief sought, such as being granted temporary custody or discontinuing visitation.
Process of Emergency Hearings
In emergency hearings regarding custody or visitation, a judge hears preliminary evidence and only addresses the emergency issues. Other issues are left to decide at a later date. At the end of the hearing, the judge may grant the petitioner’s relief or deny it. He or she may issue a temporary order that provides custody to one parent based on the circumstances surrounding the emergency.
The process of the emergency hearing may vary by jurisdiction. For example, some states have the hearing in front of a judicial officer. Others require the hearing to be held before the judge. The parent asking for the emergency hearing is usually required to provide notice about the hearing to the other parent.
During the hearing, the judge will hear evidence only pertaining to the emergency. The petitioner is responsible for providing sufficient evidence to prove his or her claims. This evidence is usually based on the danger of the child. This evidence may include live testimony from someone who witnessed the events, medical records, police reports, reports from child protective services and other information. Many judges will not grant a temporary order without evidence of abuse being presented to the court. In some instances, a judge may appoint a guardian ad litem or a child psychologist to investigate the allegations and make a recommendation.
After hearing the applicable evidence, the judge may issue a temporary order concerning the petition for emergency relief. He or she may decide on the same day and immediately after the case is presented to issue an order, or the judge may consider the issues and issue a decision a few days later.
In cases involving child abuse, the judge may order supervised visitation to the parent who has been accused of abuse or may order the parent to attend parenting classes or anger management classes.
An order of this nature may only last for a limited amount of time, such as a certain number of days or until a final order is made in the case.
Even if a temporary order is issued, it may be terminated, changed or otherwise modified at the full trial when evidence regarding all aspects of the case is reviewed. In the majority of states, a temporary order standing alone does not serve as evidence in the full trial. The party who received the temporary order must resubmit evidence of abuse at the full trial. Additionally, the parent accused of wrongdoing can submit evidence to show that the problem that required the temporary order has been resolved.
When determining custody, visitation and other matters regarding children, all states use the best interests of the child standard. Additionally, most states have a presumption that there is a presumption that awarding custody to an abusive parent is not in the child’s best interest.
Families that believe that there are legitimate grounds to request an emergency hearing may choose to contact a family law lawyer for assistance and advice.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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