How to Get Emergency Relief in a Custody or Visitation Dispute
For most parents facing divorce, determining who will have custody and when they will see their children is far more important than dividing property and debts. Unfortunately, because the fundamental differences between the parties can be magnified by a divorce proceeding, parties can behave poorly and unnecessarily complicate issues that would otherwise be easily resolved. Every disagreement can seem monumental, and parties tend to view too many situations as emergencies.
There are, however, custody and visitation issues that the court will review on an emergency basis, often resulting in the issuance of an “ex parte” custody or visitation order. “Ex parte” means without the participation of or presence of one of the parties. However, when the court has a hearing on whether or not to issue an ex parte custody or visitation order, the party seeking relief must still provide notice to the other parent, albeit last minute notice. Relief may be granted temporarily but the other side will have a chance to respond within a few days and the court may modify the relief or suspend it all together once they hear the other side. Make sure you have a strong ground for seeking emergency relief: judges don’t tend to enjoy being forced to make decisions like this quickly and without participation from the other side. You don’t want to alienate the judge by making a mountain out of a molehill. But in the right circumstances, filing for ex parte relief can be a powerful tool.
The Grounds for Obtaining Ex Parte Relief
Typically, the courts will be extremely reluctant to order custody or visitation relief based on the testimony of only one party. There are generally two exceptions:
- There is an risk of immediate harm to the child
- There is an immediate risk that the child will be taken out of the state or country
The risk of harm includes physical or sexual abuse, and may be found where the court determines that the acts are recent, or are part of a pattern of violence or abuse. The court may also find the requisite immediate harm in the form of neglect. Evidence that a custodial or non-custodial parent has failed to monitor or supervise a child may be the basis for an ex parte modification of a custody or visitation order.
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