The process to determine child custody can be a long one, especially when it is highly contentious. This situation can be a significant cause of concern for parents who have real worries about the welfare of their children when in the care of the other parent. For this reason, New Jersey law offers a potential solution through an emergency custody order. An emergency custody order can award a parent with custody of the child immediately or almost immediately, depending on the circumstances.
But there is a caveat: You must have a real fear for your child’s welfare while they are in the custody of the other parent, regardless of whether the other parent is the mother or father. If you request emergency custody but do not have a good reason or, worse, lie about it, a judge will not look kindly on you for it. In fact, it can have an adverse effect on future child custody determinations.
Here, we explain the grounds for an emergency custody order and how to go about successfully filing a request.
WHAT ARE GROUNDS FOR EMERGENCY CUSTODY IN NEW JERSEY?
The New Jersey courts generally encourage both parents to build strong relationships with their children. Sometimes, though, parent/child relationships are marred by abuse, neglect, or other harm.
If you fear for your child, you can request that the court give you emergency custody. When you fear that the other parent will cause immediate or irreparable harm to your child, an emergency custody order is a temporary solution that can, in some circumstances, become permanent.
Emergency custody only works when there are grounds for it, and you can prove the grounds. The burden to prove immediate or irreparable harm, however, is a high one. You must prove it with clear and convincing evidence.
Emergency Custody Grounds
Here are possible grounds for getting an emergency custody order:
- The other parent is in police custody.
- The parent has been incarcerated.
- The child has been taken to (or there is a real imminent threat with substantive proof of that threat) another state or country without the permission of the other parent or relevant court, known as parental kidnapping.
- The parent has threatened to remove the child from New Jersey.
- The parent has physically, sexually, or mentally abused the child.
- Someone else living with the parent has physically, sexually, or mentally abused the child.
- The living situation at the parent’s residence has undergone an adverse change (e.g., utilities have been terminated and/or otherwise not habitable).
- The parent (or someone else in the home) abuses a chemical substance, and the child has been exposed to the substance abuse.
When you file for an emergency order, you must be prepared with evidence of possible abuse or harm.
Types of Evidence to Prove Harm
Evidence of immediate or irreparable harm could include:
- Any current or prior restraining orders
- Eyewitness testimony
- Expert testimony
- Pictures, videos, text messages, and other digital forms of proof indicating abuse, neglect, or plans to kidnap a child
- Any reports, from doctors, teachers, etc.
- Police reports.
If you legitimately fear for your child, you can request emergency custody with the court. While you can request an emergency order without an attorney, in our experience as family lawyers in the state, having the help of an aggressive custody order lawyer who knows the process and the law can greatly increase the odds of success. Many parents are too fearful, too worried, or too pre-occupied to do it by themselves. Plus, this is the kind of thing you get one shot at and if you don’t do it right, the Court may not consider any “re-do”. Courts do not take these kinds of applications lightly. Meaning, Court’s seriously consider whether an emergency application and the legal merit of it is warranted before just ruling one way or another
FILE EMERGENCY CUSTODY NJ
The first step in getting emergency custody is filing the applicable forms with the court. Your attorney can do this for you to ensure that filing is done correctly and your emergency custody request is not held up because of filing errors.
The filing forms vary slightly depending on whether you file under the Dissolution docket (FM), where the filer seeks or sought divorce; Non-dissolution docket (FD), where the filer, who was never married to the other parent, seeks custody and/or child support; or Domestic Violence docket (FV), where the filer and/or the filer’s child has been and/or continues to be a victim of domestic violence.
Once the forms are completed and the appropriate documentation is attached, they can be filed at the New Jersey Courts website or hand-delivered or mailed to the Superior Court Family Division of the county in which you live.
There is no fee if this is your first time filing for an emergent hearing, but there is a $25 fee if you are requesting a modification and a separate $6 fee if you seek child support. Truth be told, if you are filing an emergency application you may want to think about whether you want to include any other requests or not because is may or may not undermine the urgency of the issue you are trying to address first and foremost.
WHAT HAPPENS AFTER FILING FOR EMERGENCY CUSTODY IN NEW JERSEY?
After filing the forms for emergency custody in New Jersey, an emergent hearing will be set within hours or a few days, depending on the circumstances. A judge will decide if a temporary custody order should be issued. If issued, the temporary order can last for several days or weeks, up until the second hearing is scheduled.
At the second hearing, the judge will determine if the temporary custody order will be removed, become permanent, or whether to issue a new custody order altogether. The judge will make their decision based on the option that is in the best interests of the child. Sometimes, the matter may go to trial. In either case, the other parent has an opportunity to defend themselves while you must “show cause” for the emergency custody.
To be successful, the parent seeking emergency custody must be able to satisfy the Crowe Standard (Crowe v. DeGioia, 90 N.J. 126 (1982)). In this case, the New Jersey Supreme Court acknowledged that when extraordinary remedies of preliminary relief are sought (as they are in emergency custody cases), four factors must be satisfied:
- The requested relief must be necessary to prevent irreparable harm.
- The legal rights underlying the claims must be settled.
- There is a reasonable probability of ultimate success on the merits.
- The relative hardship to the parties in granting or denying relief favors granting the relief.
Also, recall that clear and convincing evidence must be used to establish your claims and satisfy these four elements. It can be confusing for you as a parent who is simply trying to protect your child to build a convincing case to present to the court on your own. A skilled emergency custody order lawyer who understands the factors that must be satisfied and the evidence that is needed to prove harm can improve your chances of a positive result.
WHO CAN FILE FOR EMERGENCY CUSTODY IN NJ?
Who can file for emergency custody in NJ varies depending upon the situation. It is typically one of the parents who files for emergency custody from the other parent. Generally, you as the filing parent and the child must be residents of New Jersey. However, if you are not a New Jersey resident, you can still request emergency custody in situations where your child was kidnapped by the other parent and taken to New Jersey (and is still in New Jersey).
In limited situations, a grandparent may request emergency custody. In other circumstances when there is neglect or abuse by the parent(s), the New Jersey Division of Child Protection and Permanency (DCPP) may file for emergency or temporary placement of the child in foster care.
HOW LONG DOES IT TAKE TO GET AN EMERGENCY NEW JERSEY CUSTODY ORDER?
For many family law matters, the time it takes to get something done depends on how busy the courts are. Bergen County courts, as well as courts in other nearby New Jersey counties, are fairly busy all the time, but in cases of emergency, the wait is minimal. Once an Emergent Application/Order to Show Cause is filed, you can expect to have a hearing that same day or within a few days, but not longer than three days. The nature and circumstances of the situation dictate how soon a hearing is held.
In some cases, an emergency custody order is granted immediately without a hearing. In those cases, the parent typically already has a restraining order against the other parent.
DOMESTIC VIOLENCE AND EMERGENCY CUSTODY IN NEW JERSEY
Oftentimes in New Jersey, parents who are victims of domestic violence themselves, will be granted temporary physical custody of any children shared with the alleged abuser. You do not have to file a separate emergency custody order but receive custody when a domestic violence restraining order is issued.
If you are the victim of domestic violence and need immediate help for you and your child, call the New Jersey Domestic Violence Hotline at 800-572-SAFE (7233).
For more information on domestic violence services in New Jersey go to the Department of Children and Families webpage.
If you are the victim of domestic violence (or are being falsely accused), our domestic violence lawyers can help you with any legal matters you may have.
CONTACT AN EXPERIENCED CUSTODY ORDER LAWYER IN NEW JERSEY
The experienced attorneys at [MFR] Men’s & Fathers’ Rights Divorce Lawyers in Hackensack New Jersey are here to help you when you have concerns about your child’s safety while with the other parent. If you are seeking an emergency custody order, we can assist you throughout the filing process. Contact us today at (201) 880-9770 to arrange a time to speak with an emergency custody order attorney.