Understanding NC’s Emergency Custody Process

In North Carolina, emergency custody is a legal process by which a child can be temporarily placed in the custody of a parent prior to a full hearing on the merits. These are also often referred to as “ex parte” custody orders which means that the request is made directly to a judge usually without the presence of the opposing party and without formal notice.

Grounds For Emergency Custody

Under North Carolina law, a request for emergency custody that changes the current living arrangements of a minor child can only be granted when there is either 1) a substantial risk of bodily injury or sexual abuse to the child; or 2) there is a substantial risk that the child will be removed from North Carolina for the purposes of avoiding jurisdiction.

An actual bodily injury from child abuse or that occurs from identifiable dangerous living conditions will usually suffice. However, when the allegations is based on a substantial risk of bodily injury, there must be evidence that the risk is more than a mere concern that something “might happen”. For example, if a parent has a new boyfriend or girlfriend that is not known to the complaining party that by itself would not be sufficient for emergency custody. There would have to be evidence that the person in question has a history of child abuse, violence, or extreme negligence with regard to children.

Similarly, the mere fact that an opposing party may consume alcohol or smoke marijuana by itself usually is not considered a substantial risk unless the activity can be linked to some effect on a child. Driving drunk with the child in the car, passing out and leaving the child unattended, or smoking marijuana in the presence of the child would convince a judge in most cases to enter an order.

With regard to the second ground for emergency custody, it is not enough that a parent has left the state with the minor child. Instead, it must be established that they left the state to avoid North Carolina asserting jurisdiction. This is better understood as “fleeing the state” to avoid court action. This can occur in parental kidnapping cases where a parent takes a child and runs. This ground may also occur when prior to or in response to court action for custody, a parent relocates elsewhere with a child without any indication of returning to North Carolina or otherwise submitting to the jurisdiction of North Carolina.

It is important to note that a parent who filed the custody action in North Carolina, or a parent who filed a response and counterclaim for custody in North Carolina will usually not be considered as avoiding the jurisdiction of the state because they invoked the jurisdiction of the state in their complaint/response. As long as the parent is participating in the litigation, they are not avoiding jurisdiction even if they do have the child with them in another state.

Note that these criteria for emergency custody only apply if the request will change the current living arrangements of the minor child. Otherwise, a party may seek an ex parte emergency custody for any other reason if issuing such an order would not change the child’s living arrangements. These are often called “status quo” orders. A party may seek to have the Court enter a status quo order to preserve the current custodial arrangement pending a full custody hearing.

A common scenario for a status quo request is when the minor child has been living with one parent primarily without any court order for some period of time, but the other parent then takes the child and refuses to return the child or enrolls the child in another school. A status quo order would restore the custodial arrangement to what it had been prior to the action being taken by the other parent. It is important to note that not every judge is receptive to “status quo” custody arguments and in some cases an emergency, ex parte request may be denied.

If an ex parte order is issued, it is only temporary. It does not resolve the custody case. In most counties, another hearing will be set within a matter of days or a few weeks so that the responding party can be present and have the judge hear their side of the story. These “return on ex parte custody hearings” are not actually required by law and each county has their own policy on them.

If a further hearing is granted on the ex parte order, the judge will decide whether to keep an order in place, withdraw the order, or make any other modifications and enter a new temporary custody order. This order is also temporary and does not fully decide all custody issues. Similarly, if the order is withdrawn that does not end the custody case as the order only addressed the need for an emergency order as opposed to grounds for a permanent custody order.

It is highly recommended to seek legal representation when dealing with emergency custody matters in North Carolina. An experienced family law attorney can provide guidance, help prepare the necessary documentation, and navigate the complex legal process.