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Emergency Child Custody: The Standards for Requesting Custody

The Micklin Law Group- Emergency Child Custody: The Standards for Requesting Custody

This series discusses the ins and outs of requesting emergency child custody in New Jersey. To read the other articles, visit The Micklin Law Group’s blog.

Custody is one of the most important and significant issues that we deal with when working with men and fathers. When you have to act in an emergency situation, it is very crucial that you know what to do when the issue arises. This is known as an emergent application, meaning you’re going into court immediately and asking for immediate help as opposed to filing a routine motion, which will be heard in a month or two. 

There’s a lot you’re going to need to know if you would like to request emergency custody of your child. The first thing that I always recommend is that you retain an attorney, one who concentrates in family law. General practitioning attorneys, in many instances, are actually very good and helpful. They fit a certain need and a certain client. But I believe when you’re talking about emergency custody, as we will get to in a moment, as far as what is required, you want to make sure that you choose somebody who’s knowledgeable, and who knows the ins and outs of the law, the courts, and the judges that you’re going to encounter so that you can handle it correctly to take immediate and substantial amounts of action. It’s often very challenging to take an emergency custody case and have to drop everything you’re working on to serve the client if you’re not accustomed to handling these matters routinely.

Common Reasons to Request Emergency Custody

Let’s discuss the standard for an emergency custody hearing, because it’s not the same as a standard motion or court application. The first thing that you’re going to need to know is the case that defines an immediate court action, and that Crowe vs. DeGioia. This case established the standard for the court to give an immediate relief to a litigant in all circumstances, whether it’s family or not. Here, the standard of immediate irreparable harm must be to the child at issue, as opposed to the parent or the economics. 

Let’s talk about some examples for granting or obtaining an emergency hearing. These are not going to be exhaustive, but they’re the most common. 

First is the removal of your child from the state, and that can be even if it’s five miles. Those of us who live in North Jersey are right outside of New York, those in South Jersey are right outside of Pennsylvania. (Xanax) That’s sometimes a hop and a skip but, nonetheless, the statutes specifically say you cannot remove a child from the state without the other parent’s consent or court order if custody has been or is at issue. When custody is or has been an issue, it means you’ve been to court in the past for some other reason: child support, parenting time, divorce, or maybe domestic violence, but there has been an order in the past. 

If there’s not been an order regarding the child, whether it’s custody, parenting time, child support, domestic violence or anything, then it’s technically not unlawful to remove a child from the state. Now, that does not mean that you cannot file the applications that we’re talking about if your child’s going to be removed and you haven’t been to court. I’m just saying it’s not unlawful. It’s still emergent, which is a very important distinction. If somebody says they’re taking your child out of state and they may or may not be coming back, it’s obviously emergent, whether you’ve been to court or not. Just understand the distinction, but don’t feel limited by it. 

Removal from state is probably the most common emergent application that we will encounter when discussing custody. Next is drug or alcohol abuse. Routinely we mean by the parent, but it can also mean by the child. It’s just not as common. But if you have reason to believe that the other parent – or whoever has custody of your child – is or has been using drugs or alcohol or has an issue, that can be grounds for an emergent application. It’s classified as “substance abuse,” but that doesn’t mean that they’re a chronic alcoholic or a drug addict. They may be just using alcohol around your child when they have custody. That can be grounds for an emergent application if there’s a risk of potential harm to your child.

Next is neglect or abuse of a child. This is a very broad standard. If you believe that somebody, and it doesn’t necessarily have to be the other custodial parent, is neglecting or abusing your child, that is sufficient grounds to file an emergent application for court. This may or may not involve the DCP&P, Division of Placement and Permanency, which is the organization that’s charged with protecting children in New Jersey. For more information on DCP&P involvement, head to our blog; there is an entire article about this topic. 

The removal of the child from school or failure to place the child in school may be cause for an emergent application. Homeschooling is often an area of conflict. If you have a child that is simply not going to school or is not required to attend school by the other parent and may be falling behind, this is grounds to seek immediate applications to the court. It’s something that, left unattended, can grow to be a very severe issue. 

Finally, there’s exposure to inappropriate individuals. This is another very broad factor, but that’s because it’s your child. We’re going to leave it up to you to decide whether there’s someone doing something inappropriate or dangerous around your child. If this is how you feel, you should seek to file an emergent application to get the court intervention, as opposed to waiting with the hopes that the threat improves or is eliminated.

What Doesn’t Qualify for Emergency Custody

Let’s talk about things that may usually not be likely for the granting of an emergent application. Even though these things may not usually be granted, it doesn’t mean that you shouldn’t consider trying. If you don’t choose to approach it as an emergency, it does not mean you shouldn’t file for standard relief or a motion practice relief. But this is just when we’re talking about what the courts are likely to consider emergent.

One example is withholding vacation time, absent extraordinary or unusual circumstances. This means they just said, “Oh, you know, you’re not getting your child this week,” or, “You’re not getting the child for Christmas.” Although I have seen Christmas being handled by emergent applications, I personally don’t think it should be. As significant as I understand the holiday is to children and families, even those that don’t celebrate it from a religious standpoint, I personally don’t think conflicting plans or even parenting plans that are not honored call for an emergency custody request. However, courts have, in many cases, addressed a conflict with Christmas parenting time as emergent. Still, I don’t encourage you to use this mechanism because it can cause more problems. It can backfire and you can end up spending your holiday in court or online in some way, fighting over the time and nobody gets the holiday.

Other issues that are commonly not considered emergent are financial and child support issues, again, absent extraordinary and unusual circumstances. This is the hardest one for people to understand, and even for me to really understand. Intellectually, I get it because I’ve faced this issue for decades, but courts generally say financial issues are not emergent. But to those of us who, all of a sudden, aren’t getting your child support or alimony, and that’s the only form of income that you have, it’s very urgent. And I’ve often argued to judges, “Let’s take your paycheck away and see whether or not you think it’s urgent.” But nonetheless, generally speaking, they do not find child support or financial issues to be emergent. 

Remember with this and the other examples that there are exceptions. I’ve filed countless successful applications based on financial relief that were urgent because of some other circumstance in the situation that needed to be addressed. So along those lines, there are always exceptions to the rules. Every judge is different. Every case is different. The attorney and the attorney’s reputation plays a part. 

I had a case that was based solely on financial relief that was urgent to my client because money was likely to disappear. Generally speaking, courts figure that that’s not urgent because you can usually find money and return it. But the court granted the relief, and I think that was largely because of our firm’s reputation that we don’t just run into court and say it’s emergent because our clients want to. We truly do make sure our clients understand when it is and is not. 

As we round out this list, I want to again stress that there are going to be exceptions to these rules. Don’t just assume, especially if you have an issue that I say is not an example. Don’t just assume it’s not and you can’t go forward with it. Talk to a lawyer, and if worst comes to worst, try it. It’s better to try and be denied than to not try at all. You still always can file something afterwards in a routine standard matter-like motion if your order is denied. But at least generally try it, especially if you’re not with an attorney because the court’s not going to be upset that you filed something that you should have known was not emergent.

If you would like to speak with an attorney before deciding whether your issue is an emergency, our lawyers at The Micklin Law Group can help. You can give us a call at 973-562-0100.

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