What is an emergency for custody modification?
By Jennifer Hostetter
I often have clients contact me regarding the need for an emergency modification of custody. At that moment, that client is likely going through one of the most devastating or terrifying things in their life and they want to see action done immediately to prevent further danger or harm to their child. Unfortunately I am often stuck telling them that what they just described to me is not the type of “emergency” the court would consider an emergency to modify custody or parenting time without first having a hearing.
In order to modify custody, the moving-party has to prove there has been a substantial change in circumstances warranting the modification. Indiana statues on custody modification give the non-moving parent the right to an evidentiary hearing to determine if there has in fact been a substantial change in circumstances as alleged in the moving party’s motion. These hearings are given priority and, if requested, the court can enter temporary orders until the time of the hearing. An example of these temporary orders could be ordering a parent to remain in the state with the child, temporarily suspending parenting time, or ordering a parent to submit to a drug screen.
The courts rarely grant modifications of custody without first having an evidentiary hearing. However, in rare circumstances the court can enter an ex parte order modifying custody without first having the hearing. Because ex parte orders are an extreme remedy, they are temporary in nature and the matter must still be set for an evidentiary hearing. In order to grant an ex parte order, the court must balance the welfare of the child against the non-moving parent’s right to continued custody. If the court believes that the child’s welfare is in danger just based on the allegations in the motion, they can enter an ex parte order.
This article does not necessarily answer the question of what qualifies as an emergency to get that ex parte order. These situations tend to be fact specific, and it is best to discuss the matter with an attorney in order to determine what the best course of action is. In addition to requesting an emergency modification, you may consider requesting temporary orders, filing a protective order, or contacting the Department of Child Services.
Information provided by the law firm of Kirtley, Taylor, Sims, Chadd & Minnette, PC. For more information contact them at 317-550-4333 or visit them online at www.KirtleyTaylorLaw.com.