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Can I File for Emergent Custody?

May 20, 2018

 

In New Jersey, it typically takes about 30 days from the date you file a Motion until you appear in Court for your hearing.  But as we all know, sometimes emergencies arise and waiting 30 days simply will not work.  However, the simple fact that you don't want to wait 30 days is not enough to get emergency custody.  Instead, the Court applies a very strict legal standard to determine whether it is appropriate to grant emergency custody. 

 

What is the law governing emergent custody?

In the leading case on this issue, Crowe v. DeGioia,  the Court established 4 factors that must be satisfied in order for the Court to award emergency custody.  

 

Factor 1 - the child will suffer irreparable harm if emergency custody is not granted

This is THE MOST IMPORTANT of all the factors!  Even if you satisfy the other 3 factors, if you cannot prove to the Court that the children will suffer irreparable harm, your request for emergent custody will be denied.  

Let's be clear on what type of harm is required but not simply any small amount of harm will do.  It must be irreparable harm.  That means that the child will suffer physical, emotional or mental harm that cannot be corrected. 

For example, if the other parent is physically, verbally or emotionally abusing the child, that would satisfy this factor.  Yes, that type of behavior could be corrected and may not have a permanent effect on the child (such as the parent and child attending counseling), the Court would not want to take a wait and see or hope approach and would instead want to end that situation immediately.  

However, if for instance the other parent is violating the Court order and not allowing you to exercise your custody or parenting time, that would not satisfy this factor.  That type of harm can be corrected either by additional parenting time or a later change in custody.  

 

Factor 2 - The legal rights underlying petitioner’s claim are well settled

This is typically satisfied.  For instance, one parent filing for emergent custody over another parent, those legal rights are well settled because both parents have a legal right to custody.  However, 2 strangers fighting for custody of a child, those legal rights are not as settled so this factor may or may not be satisfied.  For instance, if the parents are not around and the child is being raised by godparents who start fighting over custody.  

 

Factor 3 - The petitioner (aka the party filing for emergency custody) has a likelihood of prevailing on the merits of the underlying claim

This factor would likely be satisfied if the allegations that form the basis for the emergent application were accepted as or proven to be true and supported by the law. 

For instance, biological or adoptive parents have supreme custody rights over all others.  If a grandparent files for emergency custody but cannot establish that the parent is unfit, then the grandparent would not likely prevail on the merits of the claim for emergency custody.  

 

Factor 4 - The relative hardship on the parties / child in granting or denying the relief.

The greater the hardship created if the request is denied = the more likely your request is to be granted.  That's why temporarily losing out on parenting time is less likely to justify a change of custody.  

 

Although you must satisfy all 4 factors, the most important factor is that the child will suffer irreparable harm.  If that factor is proven, most times the other factors will be satisfied as well.  However, if the other factors are satisfied but you cannot prove the child will suffer irreparable harm, your request for emergent custody is not likely to be granted.  

 

If you are ever concerned about your child's well being, don't hesitate.  File the emergent application.  Don't let the fact that it may be denied sway you.  Better to try and lose than not try at all!

 

 

 

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The contents of this blog entry are provided for informational purposes only.  You should consult with an attorney to determine how the law applies to the facts of your particular case.  Reading this blog entry does not create an attorney-client relationship with Kelly McGriff Law.

 

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