Brad Micklin’s webinar series has helped men and fathers in New Jersey understand divorce and family law for years. This month, 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 what happens after the judge addresses your emergency custody request. Don’t miss our other blog posts that answer more questions about how emergency custody works.
What happens if you are granted emergency custody, and when will you have to return to court?
Typically, once you are granted emergency custody, there would be a return date set. There would also be an order that indicates whether the child is supposed to be brought to you or if there’s a change of custody. If you’ve asked for any specific relief and the court is granting it on an emergency basis, there would be a court order that says whatever is supposed to be done or is not supposed to be done from time to time. You could ask that a judge put in the court order that certain provisions can be enforced through the police department if you anticipate that compliance is going to be a problem. Although, truthfully speaking, the police have little, if any, authority to act from a court order. But it’s still helpful to put in even if it’s just to give the appearance and concern to the adversary that compliance is necessary and can be enforced by possible arrest. The court will sometimes put into an order when you file an emergency basis what is not being granted and or what is being denied or reserved until a later date. The order should specify that. And then anything else the court thinks is necessary to protect the child or children in the next short term before the matter comes back to another future hearing.
You may have to return to court on any kind of timeline. It could be that day, the next day, or any other day. It’s impossible to know. It really depends on the issue, the judge’s availability, and the party’s responses and availability.
When is a judge unlikely to grant emergency custody?
The standard to receive an emergency custody order of any kind is if the court believes there’s immediate and irreparable harm to a child. It’s a challenging standard because while there may be immediate harm in many circumstances, showing that it’s irreparable is difficult. Many people will tell you that any serious risk of harm to a child can be irreparable because they’re so impressionable at younger ages and that these issues are so significant that any effect on a child could be irreparable. More often than not, judges will err on the side of caution if it’s debatable. They’ll often find irreparable harm as opposed to denying it and just like sending you on your way.
In short, a judge will not or is unlikely to grant emergency custody when either of those prongs are not met: if there is no harm to a child or if it’s not deemed irreparable at that moment. Here’s a good example. I had a client who had custody of his daughter. The mother was in Florida. She had serious mental issues, and she started issuing threats to kill members of her family and others. My client, understandably, was concerned that she might turn her attention to him or their daughter. So he went to court on emergency application asking for an order barring her from contact with the child. This was denied because the mother was in Florida and the father was in New Jersey, and the court felt that her absence from the state rendered the issue not an immediate harm to the child. Now the moment mom comes and puts foot in New Jersey, I’m sure we can go back and a judge will feel differently, but I think it’s a good, a good example because it’s often difficult for clients to understand how a judge can find something not emergent. You know, to a parent, so many things are emergent. But judges have to try to balance the overall process of law and the fairness to the other parent to be heard and to have a relationship with their child. Unfortunately, that means that they will often deem something not emergent or not immediate, and you’ll have trouble believing that they could find that way.
Is a judge more likely to grant you primary custody of your child if you’ve already been to court for emergency custody?
Not necessarily. The emergency custody is just when there’s something immediate that needs to be stopped or curtailed. When that is done and the harm to the child is removed or eliminated, then the child may be able to be returned to whatever the circumstances were before. If the removal of the harm is permanent, or if the harm alleged is ongoing, then the child may not be returned and you may get primary custody depending on the severity of the law.
As an aside, I hesitate to say “primary custody” because terms like that are misleading. People use a variety of custody terms like primary and secondary, residential custody, legal and physical. Sometimes clients will be asking or saying something that they don’t intend and it can cause issues. It’s better to speak in specifics. If you’re talking about time sharing, just talk about the time that you want. Don’t use a term like primary custody or sole custody because it can be misleading, may not really get you what you want, and in some cases can turn off a judge because they think that you are trying to accomplish something other than what you really are there for. So ultimately I’d recommend that you not use custody terms if you don’t need to because they can divert you from the important issues.
Returning to the question, the short answer is the court is likely to give you custody of your child if you’ve been to court in one emergency custody, but only if the harm facing the child has not been eliminated and the options for eliminating it have been exhausted.
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.