In this article, you can discover…
- How courts determine to grant emergency custody of a child.
- The evidence needed to support an emergency custody request.
- How an attorney can be an invaluable ally when you file for emergency custody.
1. How Does The Court Determine Whether Emergency Custody Is Necessary In New York?
The courts will consider the seriousness of the allegations and how well those allegations are corroborated. In some cases, especially if there are simply threats from your spouse to take the children, all that’s needed is for a Judge to establish a firm parental access schedule to protect both of your parental rights.
However, if the other party has significant issues, such as mental health problems, violent tendencies, drug or alcohol use, or anger management issues, these can warrant a temporary emergency custody application. To have that application approved, it’s important to have evidence of your claims.
What might that evidence look like? If your spouse has a serious drinking problem, evidence can include photos of empty alcohol bottles, videos of your spouse inebriated, paperwork showing a DWI conviction, or letters from a rehab center.
Without this evidence, it’s easy for your spouse to simply come before a Judge and say, “Yes, I drink, but I don’t have a problem.” You’ll need to be able to back up your claims to have a successful application for temporary emergency custody.
2. What Steps Should I Take If I Suspect My Child Is In Danger When They’re With Their Other Parent?
If you have solid evidence that your child has been physically or sexually abused, you need to report it to the police or to Child Protective Services. If you suspect that your child is being abused but aren’t sure or don’t have proof, reaching out to a lawyer first can be helpful. Your attorney can discuss your concerns and help you decide what the next best move is, especially in high-conflict situations.
It’s important to be aware that solid evidence of abuse is needed to obtain temporary emergency custody. In many cases, the best way to corroborate abuse is to take your child to a doctor. It can be difficult for a lawyer or a Judge to determine if abuse is or is not occurring, and a doctor can determine if the marks on your child’s body or their complaints of pain or harm are evidence of abuse.
3. Can I File For Emergency Custody Without A Family Law Attorney In New York?
Yes, it is possible to file for emergency custody without the help of a lawyer. These forms can be found on the New York Courts website, and you can also go to a family court for help drafting and filing the petition.
However, having an attorney’s help can play a crucial role in the success of your application. A family lawyer will have a better sense of the strength of your allegations and the strength of evidence against your spouse. An attorney can then, on that basis, help you understand what to include in the form.
It’s always best to at least consult with an attorney before you file, as they can best guide you on how to legally and successfully advocate for and protect your child if you suspect or determine that they are in danger.
4. What Evidence Do I Need To Support An Emergency Custody Request?
No initial evidence is needed to fill out the form, but if you do have physical evidence of abuse or neglect, this can be attached to or submitted with the petition. An order to show cause along with the application can help you request a Temporary Restraining Order on the same day that you petition for emergency custody, and an attorney can guide you through that process.
The affidavit accompanying your order must also explain why you did not notify the other parent of the request, and your evidence of abuse or neglect will go a long way in explaining your urgency and demonstrating the seriousness of the situation. Your attorney can also guide you in filling out the fact sheet of your order to show cause and wording your affidavit for the best chances of success.
Attorney David Bliven is a caring, focused family law attorney serving New York. For nearly 30 years, he’s helped clients just like you protect their children and gather the meaningful, compelling evidence needed to seek emergency custody.
Have questions, or in need of legal advice? Reach out to the Law Offices Of David Bliven at (914) 362-3080 for an initial consultation today.
5. How Long Does It Take To Get An Emergency Custody Order In New York?
In especially serious cases with ample evidence, the emergency custody order could be granted on the same day. Normally, however, a Judge will ask to hear from the other party before they issue an emergency order. In this case, they’ll provide you with a date a few days to a few weeks out to hear both sides of the dispute.
In many cases with ample evidence, a Temporary Restraining Order can be put in effect until your court date to prevent further contact while still allowing a Judge to hear what the other party has to say.
6. What Should I Expect During An Emergency Custody Hearing?
Emergency custody hearings are handled differently than standard custody trials. In these hearings, Judges may allow forms of evidence that wouldn’t typically be permitted at a full trial, such as affidavit evidence or hearsay. The Judge may also restrict the hearing’s duration, sometimes allotting just 15 to 30 minutes per side to present their case, given the urgency of the situation and the limited time available.
Because of the potential for a child to be in danger, Judges often accommodate these hearings outside regular hours. You may be called to appear early in the morning or after the day’s last hearing to ensure your claim is heard. It’s important to make yourself available as needed to demonstrate the seriousness of your case and ensure the Judge has the opportunity to review your concerns.
7. What Role Does CPS Play In Emergency Custody Cases?
Child Protective Services may or may not play a role, depending on whether they have been contacted in advance. In other cases, a Judge may call for a Court Ordered Investigation by Child Protective Services to investigate the allegations of abuse or neglect.
Child Protective Services may indeed return to the Judge and verify they have found evidence of abuse. Even if they did not find direct evidence of abuse, they may note other issues of concern and include these findings in their report.
8. What Can I Do If The Emergency Custody Request Is Denied?
The first thing to do is to file an appeal. You can file an emergency appeal and an emergency order with any evidence or new evidence of abuse or neglect. However, it’s important to talk with your family lawyer as to whether going through this process makes sense in light of the circumstances of your case.
9. How Do Emergency Custody Orders Impact Existing Custody Arrangements In New York?
This depends on whether the Judge believes that your emergency application shows valid grounds for changing custody arrangements. If the Judge feels that there’s enough evidence to warrant it, they can modify, suspend and / or enforce your existing agreement. In other words, your existing arrangement can be wiped out, and a new order can be handed down in light of compelling evidence of abuse.
10. Are Emergency Custody Orders Temporary Or Permanent?
By nature, emergency orders are temporary because they serve as a solution to an emergency situation. They will be in effect until a formal trial on the issue. Emergency custody orders can also consider affidavit evidence and hearsay evidence, types of evidence that can not be admitted at trial.
At trial, you and the other parent will submit your respective evidence and testimony, and a more permanent ruling will be handed down by the Judge.
Still Have Questions? Ready To Get Started?
For more information on Seeking Emergency Custody In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 362-3080 today.
