When involved in custody disputes, our courts have the ability take action in emergency situations in order to ensure that children are protected. Often, however, parents (and even some attorneys) have a difficult time discerning what is a true emergency and what is not. The dilemma is understandable: if it is an emergency and you don’t take action, your child could be hurt; if it isn’t an emergency, you may be viewed as an alarmist or alienating parent for taking action.
Filing an Application for Emergency Ex Parte Order of Custody is appropriate where there is an “immediate and present risk of physical danger or psychological harm to the child(ren)”. The first thing to note is that the risk has to be immediate and present for the Court to take action. In other words, the court is not going to be concerned about things that happened months, or even weeks ago, unless they are part of a larger pattern of physical/psychological harm; and even then, there has to be something presently happening for the Court to prevent something from happening.
The next question is: what amounts to physical danger and/or psychological harm? Physical danger is easier to detect – if your child comes home with bruises, fresh wounds or other injuries that do not appear to have plausible explanations, you should consult with an attorney immediately to determine whether or not an emergency application should be filed. Psychological harm is more difficult to determine, particularly as a parent who (rightfully) may be overprotective. For example, when a child comes home visibly distressed, complaining of maltreatment or having to listen to disparaging remarks, that may not necessarily be an emergency. This is where the knowledge and experience of an attorney are required.
I have both filed and defended against these emergency applications for my clients over the years. Filing an emergency application requires not only knowledge of the law, but knowledge of the judges that these applications may be presented to and the ability to advise clients when to not file emergency applications. If you believe your child faces an immediate an present risk of physical danger or psychological harm, please give me a call immediately to set up a consultation.