Do you believe that your child is in danger while in the care of the other parent? Have you been denied access to your child by the other parent and are concerned about his or her well-being? You may have grounds to apply for temporary emergency custody.
The standard for applying for a Brooklyn emergency custody order can be challenging to meet. You need an experienced family attorney to help you make your case. The Gilmer Law Firm, PLLC, brings decades of experience and knowledge of New York’s family law to every case.
What Is a Temporary Emergency Custody Order?
A temporary emergency custody order in NY is an order changing or assigning temporary custody of a child from one person to another if the child is in imminent danger. Normally, when there’s a custody dispute, you’ll have to file a petition for custody or a custody modification and go through a lengthy process to alter custody. However, if the child is in danger, the law recognizes that parents or another close relative need an immediate way to keep the child safe from a dangerous parent.
A parent can apply for temporary emergency custody. Also, under “extraordinary” circumstances, a non-parent can apply for temporary emergency custody. Extraordinary circumstances include when the child is abused or neglected, the parent goes to prison, or the parent abandons the child.
The standard is relatively high for an emergency custody order. You must demonstrate that the child’s current environment is dangerous and must be changed immediately to keep them from harm. Usually, you’ll have to show that the child is in immediate danger of abuse or faced with another urgent situation to get an emergency custody order. Courts will not grant emergency custody orders making significant changes to a child’s custody except in exigent circumstances.
Emergency custody orders are initially temporary. When you file for such an order, you go before a judge typically on the same day you file it without the other parent’s presence. If the judge grants the emergency order on that day, it will last only until the next court date. At that time, the court will decide whether to extend the emergency custody order.
Emergency Custody Order Procedure
When you request an emergency custody order, it’s because there’s an emergency situation that cannot wait for the standard yet lengthy custody modification process. The purpose of filing this application is to get a quick court date. Court dates take a while to come when you file an ordinary petition for custody and take even longer in the days of COVID. As a parent, you have to consider whether the well-being of your child is in danger. If your child is in danger, you’ll need a resolution immediately. Thus, you’ll go through a different procedure for an emergency custody order than you would for a regular custody case or a modification case.
To file for temporary emergency custody, you will file it by order to show cause with an affidavit and petition for custody attached. You will file the application in the family court in the county your child resides in. In COVID times you will file the document via the Electronic Document Delivery System (EDDS) filing system. You must allege in your papers the nature of the emergency, or your application will be denied. You can also file in the supreme court if you are filing or in the middle of a divorce.
When you file this application, you will almost immediately see the Judge. At first, this will be what is called an ex- parte application, meaning the other party is not present. The Judge will ask you why you are filing, and you will need to explain in detail the purpose of your application. The Judge can do a number of things at this first appearance. First of all, he/she can grant emergency interim relief. This can be a number of things, including that the child be produced in court. The Judge is unlikely to grant your request for temporary custody without the other parent present. The judge can also deny your application but schedule a court date for the petition of custody you also filed. Secondly, the Judge can schedule another court date to give the other parent an opportunity to be heard. You will have to serve the other parent with your papers, most likely personally. Thirdly, at the follow-up court date, you will have the opportunity to present your arguments for temporary custody, and the other parent will have the opportunity to reply.
The Judge may also set the matter for a more full-blown hearing where evidence can be presented by either party if need be. At the end of the hearing, the judge may convert the emergency temporary custody order to a permanent custody order.
The Court will not routinely grant these requests, so it is best you hire an experienced attorney to make the case out for you. Our attorney has 20 years of experience in these matters and other Brooklyn family law issues.
Reasons a Judge May Grant an Emergency Custody Order
There are some situations where the Court will strongly consider your application.
Abuse or Neglect
Where you believe the other parent is abusing or neglecting your child, the Court may consider your application. There are various types of abuse or neglect. Some are excessive corporal punishment, educational neglect, medical neglect, untreated mental illness of the other parent, mental abuse of your child, or inadequate guardianship over your child. If you believe abuse or neglect is occurring, you should contact your local child protective service as well to have them investigate the matter.
Abandonment of Child
Where the other parent abandons your child with family or friends and you have no access to your child, you may have grounds to file an application for temporary emergency custody. If this abandonment occurs, you need to understand as a parent, you have the right to custody of your child over other secondary family members or non-relatives.
Interference with Visitation
If the other parent does not let you see your child at all, you do not know whether your child is safe, and have a legitimate concern for your child’s well-being , you can apply. A final order of custody can be given to a non-custodial parent when the parent that has custody refuses to let the non custodial parent see the child. The same logic can be applied to seeking a temporary order of custody.
If the other parent is poisoning your child against you by putting negative thoughts in the child’s mind about you, you may be able to file for temporary custody.
Violation of Court Order
If the custodial parent is violating a court order, you can do two things: apply for a modification of the current custody order and also apply for a temporary order of custody.
What If New York Is Not the Child’s Home State?
If your child has lived in New York for less than six months and the other parent has either abandoned the child or if the child is threatened with an immediate risk of neglect or abuse, you can apply for the aforementioned relief in this state. Generally, the “home” state of the child is where the child has resided for the past six months or more. You would be unable to apply for custody in New York if it’s not the child’s home state unless the emergency circumstances mentioned above exist.
There may be other reasons to file for the above-referenced relief. Any behavior that is not in the best interests of your child that requires an immediate response from the court will qualify.
Temporary Orders of Visitation
If you are unable to see your child and you believe that any of the above is happening, you can also apply for a temporary order of visitation. This would occur when the other parent doesn’t allow you to see your child, doesn’t inform you about the child, and you believe your child’s well-being is in danger. You can ask for this in addition to requesting the above-referenced relief in case the court does not grant your request. The logic behind this is that you can mitigate some of what’s happening if you see your child more.
Contact the Gilmer Law Firm for a Brooklyn Emergency Custody Order
As you can see, filing for a Brooklyn emergency custody order can be complex. You don’t have to go through this process on your own. The Gilmer Law Firm, PLLC, has 20 years of experience representing parents in custody matters. If you want to apply for temporary emergency custody, please contact this office at 718-568-5214 for vigorous representation.