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 an emergency, temporary basis. Ultimately, the court can even decide to issue a new permanent 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
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.
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.