It’s every parent’s worst nightmare: your child is in danger, and you are powerless to help. In today’s society, we live with real potential for harm in so many forms: an active shooter on a school campus, a traffic accident, or a medical emergency. In those situations, there’s little we can do but rely on trained professionals to do their job, while we hope and pray for the best outcome. But what happens when the danger to your child comes from your ex-spouse, the child’s other parent? How can you safeguard your child from a clear and present danger from a parent with legal custody?
Imagine these situations in which you share custody with an ex:
- Your ex-spouse’s behavior has become erratic. You suspect mental illness or substance abuse. You hear from your child that she is afraid to be in the car with your ex, and does not get regular meals during overnights.
- Your ex is exhibiting signs of depression. He or she speaks morbidly about the meaninglessness of life and the welcome relief of death.
- Your ex is a foreign national who is homesick for his/her country of origin. He/she often speaks about how much better it would be to raise the children there. Your children have valid passports from a trip a few years ago, but now you can’t find them.
Under these circumstances, and many others where a child might be at risk, a parent can ask the court for sole custody on a temporary emergency basis. Ultimately, the court can even decide to issue a new permanent order.
High-Profile Parental Kidnapping Cases Remind Parents to Be Vigilant
While parental kidnapping is rare, some parents will go to extreme means to deny custody to their former partners. In recent years, a few prominent New York area cases have served as a warning to parents in custody disputes:
- Lisa Miller — In January 2021, Lisa Miller was arrested in Miami upon returning to the United States after spending 12 years in Nicaragua. In 2009, Ms. Miller had absconded with her daughter Isabella after separating from her civil union partner, Janet Jenkins. Ms. Miller had become a born-again Christian. Having disavowed homosexuality, she wanted to shield her daughter, then seven years old, from that lifestyle. As a result, Ms. Jenkins was separated from Isabella for the entirety of the girl’s adolescence.
- Lev Tahor — In November 2021, two leaders of Lev Tahor were convicted of kidnapping and child sexual exploitation crimes, after the men “brazenly kidnapped two children from their mother in the middle of the night to return a 14-year-old girl to an illegal sexual relationship with an adult man.” The kidnappings were allegedly sanctioned by the children’s father, a leader of the sect, who did not have custody and had been prohibited from contacting them. Two more men were convicted for this crime in 2022.
- Amitkumar Kanubhai Patel — In July 2022, Mr. Patel, a 38-year-old Indian American, who is a naturalized U.S. citizen, was convicted of international parental kidnapping. Mr. Patel was a resident of Edison, NJ at the time he took his US-born child to India and later failed to return the child to his mother, even after a court had ordered him to do so.
These cases demonstrate the types of risks to a child’s welfare and a parent’s rights that justify an application for an emergency child custody order.
The Process in New York for Getting an Emergency Child Custody Order
In New York, a parent, grandparent, or another relative can petition the court for an emergency custody order if there is reason to believe the child is in imminent danger. This is a temporary order issued after an ex parte hearing if the court has reason to believe the child might be at risk from:
- Abuse or neglect
- Sexual abuse
- Kidnapping
A petitioner can also seek a temporary order if a custodial parent has died or become incapacitated.
To receive an order, the petitioner must file a request in family court, presenting persuasive evidence, which can include:
- Personal testimony
- Reliable witness testimony
- Medical records
- Child Protective Services reports
- Documentary evidence, such as emails, text messages, voice recordings, or videos
The petitioner is not required to prove the case beyond a reasonable doubt. The court, which is required to act “in the best interests of the child,” must respond prudently to any reasonable allegations. Still, judges do not like to override existing orders on weak evidence, especially if the petitioner is drawing unreasonable conclusions or acting on base motives unrelated to the child's welfare.
If a judge issues a temporary order after hearing only one side of the story, the court will hold a hearing shortly after the temporary order has been made. The other parent then has the opportunity to rebut the petitioner’s claims and request that the court rescind the temporary order. The court can do so or keep the temporary order in place.
After you’ve been granted a temporary order, you must still take actual physical possession of your children. This can be a delicate matter if your ex is truly irrational. The best tact is often to have a professional process server present the order and the summons for the hearing. This alerts your ex to the change in custody and your intention to take your children into your custody. You should bring whatever support you feel you need to effect the exchange without resistance. Do not hesitate to ask local police for assistance if you feel it may be necessary.
How to Proceed in New York if New York is Not Your Child’s Home State
If New York is not your child’s home state, you can still file for temporary emergency custody in a New York court if:
- Your child is currently living in the state, and
- You need the order in an emergency to protect the child, a sibling, or a parent of the child.
If you haven’t yet gotten a custody order from the child’s home state, a New York judge can issue a temporary order that would stay in effect until the home state overrules it with a subsequent order. If, after six months, the child continues to live in New York and neither you nor the other parent has filed a custody petition in another state, the temporary emergency order could become permanent.
If you already have a custody order from another state, the temporary order you get in New York will be effective for a limited time period, sufficient for the parties to return to the court that issued the original order and move for a modification. Alternatively, if the New York judge believes the child is in imminent danger, the emergency order can remain effective until the original state’s court can intervene to protect the child. The New York judge is expected to communicate with a judge in the original state to cooperate on a plan to protect all parties, especially the child. This discussion can determine how long the temporary order stays in effect.
Seek Effective Counsel as Soon as Possible
Child custody matters are often inordinately stressful, and people under incredible stress are rarely on their best behavior. Scenarios that call for emergency orders require skillful management to prevent escalations that could seriously harm your children. That’s why it’s best to consult an experienced child custody attorney who can calmly and capably guide you through the crisis.