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Preparing Evidence and Attending An Emergency Custody Hearing

The Micklin Law Group- Preparing Evidence and Attending An Emergency Custody Hearing

Brad Micklin’s webinar series has helped men and fathers in New Jersey understand divorce and family law for years. Recently, Brad decided to present a webinar answering a few of his followers’ questions about emergency custody of children. In case you missed the webinar, here are Brad’s answers to these questions. This post focuses on how to prepare for your hearing and what to expect when you actually speak to the judge. Don’t miss our other blog posts that answer more questions about how emergency custody works.

How long do you have to wait for an emergency custody hearing?

When you file an emergency custody request in New Jersey, it is filed on one day and it’s generally going to be reviewed by a judge that very same day. If the court considers it to be an emergency, they could have a hearing that same day. It could be shortly after, such as the day or week after, or it could be as long as weeks or months. They could also sort of bifurcate. So they could give you an emergency hearing in a couple days to address something or to give the other parent a chance to respond and then schedule the rest out in time. In short, it could really be that same day or any other day. There’s no real guideline. It depends on what the judge thinks of the urgency, and that is assuming it’s granted as urgent. If it’s not considered urgent, it’s either going to be rescheduled on a motion calendar, and you’ll just be told to go on your merry way. 

What does a father need to do to prepare for an emergency custody hearing? 

Again, it’s hard to answer questions like this without an actual example, but when you’re filing an application, the simple answer is to gather as much documented proof as possible. You also want to attach any prior court orders to any application that you’re ever submitting to change an order to address a parenting issue. Always include everything that the courts have previously ordered about custody and attach any documents that evidence the issues, whether they’re emails or records. Really, you can just use the kitchen sink kind of approach and put in whatever you think may show or document the issues. More is better than less, so take that as your guide.

How long will the hearing be and what information will the judge request? 

Sometimes when you file emergency custody you don’t even get a hearing, and you’ll get a decision that says it is emergent, meaning come back on this day and serve the other party. If it’s not emergent and you’re denied or your schedule for motion date, they can take your testimony about what you put in your emergency application. Usually, it’s only going to take a few minutes. So, the long and short is that the initial first hearing, the day you file your emergency hearing, is usually pretty short. The court will just be asking some questions to verify or clarify what it is you filed to find out how it may have changed since the issue arose. Even if it is long, I can’t see it being more than an hour in most cases, but usually it’s much shorter than that.

Again, every case and every hearing and every judge will be different. Now, most of the time if you’re filing an emergent application, you’re going to just have oral argument, where you appear and argue why you’re there. The courts generally will not take testimony at the initial filing. You want to bring everything that you filed just in case the judge doesn’t have it in front of them and so that you can reference it. Again, the kitchen sink approach of including absolutely everything you can think of that may influence the judge is much better in a case like this. The more you have, the better off you may be. 

The second part of the question is, what information will the judge request? That could be anything specific that they need to document to decide the issue. Like if there’s a medical issue, they might want to see medical records, and they might ask you to produce certain witnesses that can corroborate issues or help establish their issues From an independent basis, the court may want to hear from any kind of experts and may actually even consider appointing an expert like a mental health or social worker or psychologist to address any specific issues that may be relevant to your application or to the child’s needs.

They might ask you for past paperwork that was submitted to the courts that they may not have. Judges don’t always have the entire file. Most often they don’t actually have the entire file. All they have is what you’ve filed, which is why I tell you that when you file, you should attach everything because you want the judge to have it in front of them. 

Should you bring witnesses? 

If you file an emergent order or an emergent application and you get a hearing date, even if it’s the next day, then you can be prepared that the judge may take testimony from you or other parties that day. So be prepared to bring any witnesses that you need. You can even consider asking the judge if they will be taking testimony, and you can do that when they set the hearing date following your application.

How should you document your concerns about your co-parent’s behavior? 

This will depend on the type of behavior you’re concerned about. In New Jersey, recordings are great. You can tape your conversations with another person without them knowing, and usually, it is all usually admissible in court. One caveat is that some judges do frown upon the use of recordings if you’ve recorded it without the other person knowing. The belief is that you’re on your best behavior and you’re capturing them when you know that they’re not. Judges also may not like people doing it because they want everybody to be nice and friendly and happy and live a perfect life. But unfortunately that’s just not what the reality is.

Despite the potential adverse consequences or adverse comments a judge may make or feel about recording, I still always advise clients to do so. It’s better to have it and not need it or not be allowed to use it than not have it and not be believed. So audio and visual recordings are great. I normally recommend an app on the iPhone called Rev. It allows you to get it transcribed if you need a typed transcript for a court because they may not want to listen to a three hour video. It’s relatively inexpensive, and it’s just a really good app. You can also document things in emails, even if you are confirming what was discussed in person. For example, you can write back, “Why did you say this? Why did you take that? Why did you let this happen?” You can later argue that the absence of response or the absence of denial should be considered an admission. So emails are good, texts are good. Texts are sometimes harder to reproduce to a court because you can’t just walk in with your cell phone. You want to be able to reduce it to some form of paper so that a court can read it and you can copy and get it to the other side. 

How can I make sure my evidence is admissible in court? 

There are a lot of rules for evidence, and there are a lot of reasons to keep documents from being admissible. I think in my opinion there are more ways to get documents in than to prevent them. Even if there’s not a specific rule that allows it, there’s a catch-all that if it’s in the interest of justice or better serves the fact finder, that the court can consider it. More often than not, the court will consider documents that would otherwise be considered inadmissible because of various court rules, and that goes back to why I keep saying to submit as much as you can because if there is a chance that some of it will be inadmissible, you want to have other information that is admissible. It can help you to find out in advance: talk to a lawyer, do some internet research, and you can get some sense of what is and is not admissible.

As I tell all my clients, family law is not a nine to five job; it’s five to nine. Especially with emergency custody, the issues often arise on a Friday night, Sunday morning, or Christmas Eve; this is when you need to reach your lawyer. Myself and my associates are always available in those times of need. If you need assistance with an emergency custody issue, you can contact us here.

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