Emergency Custody

Emergency Custody

As New York divorce attorneys practicing in family law, we often deal with critical child custody issues. The most critical can be the other parent’s use of an emergency motion to manipulate a child custody dispute. If an emergency motion has been filed against you, contact us and we may be able to help you with your child custody emergency.

What are motions?

When someone files a “motion,” it simply means that they are asking the court for something. For example, a parent might file a motion to have a child removed from a dangerous environment created by the other parent. Or, a parent might file a motion modify child support or visitation.

How about emergency motions?

In the context of a child custody case, emergency motions are most commonly those motions which must be filed to protect the life or health of a child. For example, if it is “blue shirt day” at pre-school and one parent refused to dress the child in a blue shirt that day – that is not an “emergency.” However, if one parent is dating a child molester and plans to leave that person alone in supervision of the child, that is most certainly in the realm of emergency.

Another example involves an interstate child custody dispute a parent has taken a child from New York, and the New York parent might file an emergency motion for the child’s return; in such a case, your case would probably involve the New York Uniform Child Custody Jurisdiction and Enforcement Act, or New York UCCJEA – one of my practice areas.

Emergency motions differ from standard motions in two major ways:

  1. the notice required, and
  2. appearance of the other party.

Notice: With standard motions, the motion must be served (delivered) to the other party within a certain amount of time, and via a certain method (such as US Mail). Serving the other party allows that party to prepare to respond to the motion, and a chance to plan to attend the motion hearing and related appearances in court. However, for emergency motions, often only “emergency notice” is required (as in New York). Emergency notice does not require use of US Mail but still requires the person filing the motion (the “movant”) to give “emergency notice” to the other party. In other words, the movant has to make some reasonable attempt to in form the other party of the emergency motion; email and phone may suffice in this situation.

Emergency motions can be “ex-parte”: If a hearing is ex-parte, that means that the movant is going to be heard without the presence of the other party. Therfore, it is a unique situation where only one party – the movant – is allowed to present argument to the judge. While emergency motions are supposed to be employed in very serious situations, they are sometimes abused by parents and attorneys who either do not understand them or are wrongly using them to achieve an objective of litigation.

What are the problems with emergency motions?

The problem with emergency motions is that they are often misused. Since the movant does not have to provide standard notice to the other party, and can appear in court without the other party being present, there is a large temptation to use emergency motions to accomplish objects that could not otherwise be achieved.

For example:

Fabricated emergency: The movant might simply make up facts that form the basis of the supposed emergency – there is no emergency. Unfortunately, a judge might believe the movant, think there is an emergency, and then grant the movant the requested relief (such as a change in custody).

What is claimed to be an emergency is not one: Making a mountain out of a molehill. Ideally, a judge would dismiss the emergency motion due to lack of emergency. However, all judges are different, and one judge might think something is an emergency that 99 others would not. In that case, the movant might get the requested relief.

How a lawyer can help:

As a lawyer, we take very seriously the job of helping our client's respond to critical situations. In New York family law, there are no more critical issues that those involving children, and particularly, emergency motions.

If you have received notice that the other parent has filed an emergency motion, seriously consider finding an attorney that will help you respond on short notice. We feel it is a very high priority for me to help defend parents who are subjected to the abusive use of emergency motions. We can often appear in court in short notice, and though time to prepare may be limited, we may be able to help you defend against a baseless attack.

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