To file for emergency child custody in North Carolina, file a complaint or motion with the court stating one of the grounds for an emergency temporary order listed in N.C.G.S. § 50-13.5(d)(3).
Filing for Emergency Custody in NC
Filing for emergency custody in North Carolina may require starting a case with a complaint along with a motion for emergency custody. It may also mean filing a motion in an existing divorce or child custody case. To file, you must prepare a court motion that follows the proper format. It states the grounds for an emergency order. You should include a verified statement of facts explaining the circumstances and the need for the court order.
What is the Law for Emergency Child Custody in NC?
The authority for emergency child custody in North Carolina is in N.C.G.S. § 50-13.5(d)(3). The law creates three limited circumstances where the court may award emergency child custody.
The circumstances are:
- The child is exposed to a substantial risk of bodily injury.
- The child is exposed to a substantial risk of sexual abuse.
- There is a substantial risk that a child may be abducted or removed from the State of North Carolina to evade the jurisdiction of the court.
Emergency child custody is generally ordered ex parte. That means the other parent doesn’t participate in the court process. They may not have notice of the motion or the opportunity to present information before the court decides. Generally, people have the right to notice and an opportunity to be heard before their rights are ruled on by a court. However, when it comes to the safety of children, sometimes there isn’t time to wait for a complete court hearing.
Emergency child custody can be awarded by a North Carolina court, but it is rare. There must be strong evidence that the child is facing a substantial risk of imminent harm.
How much does it cost to get an emergency custody order in NC?
There is no cost to file a motion in an existing court action. If you are filing a new child custody case at the same time you seek emergency custody, you must pay a filing fee of $150.
How long does an emergency child custody order last?
There’s no set period for how long an emergency child custody order lasts. However, when the court issues an order ex parte, the court will conduct a complete, follow-up hearing shortly following. An emergency child custody order will end when the court modifies it or enters another order.
What happens after an emergency custody order is granted?
After emergency custody is granted, the order is enforceable by the court until further notice. It must be followed by both parties. Law enforcement may assist if needed to safely transfer care of the child. The court will schedule further proceedings so that a full hearing may be held with notice to both parties and the opportunity to present evidence and make arguments.
What if emergency custody is denied?
If you seek emergency custody, and the court denies it, there are still things you can do to seek custody. You can request a temporary custody order with notice to the other party. In addition, you may proceed to a hearing on a motion to establish or modify child custody and parenting time orders.
Temporary orders when starting divorce or child custody proceedings
The court may issue non-emergency, temporary orders, under the authority of N.C.G.S. § 50-13.5(d)(2). When the court has jurisdiction regarding a minor child, they may enter these temporary orders.
It’s common for some North Carolina courts to issue “status quo” temporary orders to the parent who files first. The orders usually maintain the current custody and parenting time arrangements until further court proceedings. Requests for status quo orders usually don’t contain the allegations found in N.C.G.S. § 50-13.5(d)(3) that would justify an emergency order of the court.
However, these temporary orders are generally accepted as common court procedure because they don’t change the living arrangements or custody of a child, which is prohibited under N.C.G.S. § 50-13.5(d)(3) on an ex parte basis without one of the emergency grounds being present.
If you encounter one of these temporary orders, involve a lawyer right away. It’s often all too common and convenient for temporary orders to become permanent orders. Your lawyer can work on your behalf to present your case quickly and notify the court that you intend to make specific requests regarding custody and parenting time.
Jurisdiction in Emergency Child Custody Proceedings
N.C.G.S. § 50A-204(a) authorizes North Carolina courts to exercise temporary emergency jurisdiction if a child is present in the state and they are abandoned or need emergency protection. Emergency protection may be required because the child, sibling, or parent is threatened or subjected to mistreatment or abuse.
Practitioner Note: North Carolina Lawyers must be mindful of the North Carolina Rules of Professional Conduct Rule 3.3(d), stating: “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”
In addition, Rule 3.3(a) prohibits a lawyer from making a false material statement to a court.
When making an ex parte request for emergency custody, a lawyer must be mindful to present complete and truthful information to the court.
Jennifer is a founding partner at Remington & Dixon, PLLC. Jennifer concentrates her practice in the areas of family law, wills & estates, unemployment benefits appeals, and traffic. At Elon University School of Law, Jennifer was the vice president of the Public Interest Law Society and a member of the Family Law Society. During law school, Jennifer interned at the Elon University School of Law Field Placement Clinic with Legal Aid of North Carolina where she represented clients in domestic violence court proceedings.