Oftentimes in the course of a divorce proceeding, the dynamics of the husband and wife calls upon an action to have emergency custody of children. When such action is truly necessary, how do you go about getting the court to order temporary custody?
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The urgency of a situation or the complexity of the parents relationship may drive parents to get an emergency order of temporary custody.
What does this mean?
Your See Evil, People See Unusual, The Court Sees Nothing
Your husband takes your kid for parenting time. It’s getting late and they’re still not back. You start playing scenarios in your head. But, they’re back and they are really late. It goes on parenting time after parenting time. The same anxiousness and the same scenarios playing in your head.
You then decided to take action. You don’t want this parenting arrangement anymore. You want full custody.
When one of the parents starts the custody case, the court will ultimately be asked to give final orders regarding who gets the custody. Court custody proceedings could take the court many many months as it cycles through all the things it has to do.
These things the court needs to do are mandated by statutes governing custody determinations. But it does not mean they can’t initiate temporary orders. Temporary orders can be had by approaching the court either on an emergency basis or not.
A parent can propose temporary custody while the court is in the process of figuring out final custody. While the child has been living with the parent during the custody proceedings, that parent can petition temporary custody.
Your lawyer can actually do that by filing a request for either an ex parte order or get the court to do something temporarily.
Your situation may be for you, desperate or what you categorize as an emergency. It may be because your ex is spending more time with your kids, your partner has a better vacation trip than you, and you don’t want the kids to enjoy too much time with you ex and the new partner.
Maybe your ex just bought a ticket to Paris and you’re afraid they may never come back. Or, you just believe the school near your ex’s new home may be too good for your child.
And all of that to you is screaming “emergency” and you got your lawyer on speed dial for a temporary custody order.
The court and the law may have a very different perspective about emergencies. Unless you convince the court of your “emergency” the court will see nothing.
The Truth About Custody Orders You Need To Think About
While in the process of seeking custody, you may hear everybody throwing around the term emergency orders and ex parte orders. You might get the impression it’s something easy to get. In reality, it’s easy to request, it’s not easy to get.
The court acts on three types of custody orders: temporary orders, ex parte orders, and final orders.
Temporary Orders
Children’s stability is supported through temporary custody orders, sometimes known as preliminary orders, while a case is in court. Parents are required to adhere to a schedule and a child support agreement up until the case is resolved with final orders.
Soon after opening a case, parents should meet with their Friend of the Court (FOC) case manager to negotiate a provisional injunction.
The case manager drafts the temporary order for the parents to sign if the terms are agreed upon. While parents must submit the interim order to the court clerk directly in some counties, the manager must file it with the court in others.
The FOC recommends a custody arrangement to the court when parents are unable to agree on interim custody. Your case manager might succeed, or a FOC custody specialist might succeed after conducting research. In either case, unless a parent files an objection, which triggers an objection hearing, the suggestion becomes a temporary order.
When they open or react to a case, parents have the option to file a motion asking for interim custody as an alternative to the FOC procedure. The court will set up a motion hearing during which parents submit evidence in support of their suggested arrangement, and a judge or domestic relations referee imposes an interim order.
Ex Parte Order
A parent can request the court to decide ex parte (without the other parent’s input) while filing for interim custody or a personal protection order.
Ex parte orders, also known as emergency orders, are widely utilized since they can be immediately issued in cases of domestic violence or child abuse.
When immediate action is required, an ex parte order may be made without the other parent’s presence. It is an emergency court order for temporary possession without a hearing in which you must demonstrate the child will suffer irreparable harm if action is delayed.
You must demonstrate your children are seriously in danger and waiting for a hearing would cause them irreparable harm in order to obtain emergency custody of your children. Understand the court operates under a different definition of the word emergency from what you might have.
You might have the definition of your child not being returned on time as potentially an emergency situation. You might take this as a cause to seek an immediate relief from the court.
The court will not see it that way. The court will look at something as an emergency only if there’s an immediate threat to the child. If you can prove this to be the case, the court might be inclined to give you emergency relief.
If the court gets a sense your definition of emergency has to do with the other side not complying or you’re not getting along with your ex or something similar. The court may not likely determine your situation as an emergency.
It is best to talk to your lawyer about how to frame the basis for the emergency temporary custody order.
An ex parte custody order is valid until it is replaced by a final custody order, whereas an ex parte personal protection order is valid for at least 182 days.
There are two circumstances, a motion for an ex parte order necessitates a hearing:
- If the request is rejected by the court and the asking parent objects within 21 days
- If the court grants it and the opposing parent files an objection within 14 days of receiving a copy,
Both parents must appear at an ex parte objection hearing in these situations and provide testimony to a judge or domestic relations referee. You can read more about ex parte order in our article, “What Does Ex Parte Order Mean In Michigan?” if you want to know more about it.
Final Orders
An instance comes to an end with final orders. In addition to addressing any other matters in the case, they lay out a parenting plan and child support payment. In the event parents reach agreement on a parenting plan, they may also ask the court to incorporate it in the final order.
Unless the court alters the order first, a final order remains in place until the children concerned turn 18 or graduate from high school (whichever occurs later).
In a settlement, the parents collaborate to draft a final decree (also known as a consent order or consent judgment) to be presented to the judge for approval at a settlement hearing.
If the parents can’t come to an agreement, they can allow the Friend of the Court’s custody recommendation to become a binding judgment. Or, during a final custody hearing, either party may put out a final order.
So when you think about custody orders, think about the compelling reason for it. Your definition of emergency may not be as compelling as you think.
Ask your lawyer how to frame a more compelling reason for the custody order within the definition of the law and the court.
You have to understand the court works with a different set of definitions.
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Goldman & Associates Law Firm is here to with information about Child Custody and Divorce in the State of Michigan.