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Emergency Custody in North Carolina: The Real Scoop

Carolynby Carolyn J. Woodruff, JD, CPA, CVA, North Carolina Family Law Specialist

Emergency Custody is a tough topic in North Carolina. Under North Carolina law, there are really two times that the court can consider switching custody on an ex parte (hearing from one side only).  These two times are (1) the child is at risk for substantial bodily injury, or (2) the child is at risk for removal from the jurisdiction of the court (child snatching).  The rules for conducting emergency custody vary between counties such as between Guildford County and Randolph County, but all require that the other side be notified before approaching a judge for an ex parte order and all counties require a ten day hearing by statute.  Checking the local rules for the particular county where the custody court file is or will be is critical.

So what are some of the actions that might give rise to emergency custody?  Under the category of substantial bodily injury might be excessive corporeal punishment leaving marks that are present more than 24 hours later.  Illegal use of drugs by a custodial parent that impairs parenting may qualify.  Domestic violence in the home of the custodial parent may also qualify.  A parent attempting suicide qualifies.  Sexual abuse certainly qualifies, and requires a report to Social Services for investigation.  More about the sexual abuse later…

The question becomes whether mental abuse is substantial bodily injury qualifying for consideration of Emergency Custody.  I like to think that the brain and emotional responses are part of the body, but generally, the mental abuse can be a “tough row to hoe” in an Emergency setting if that is the only allegation.  An exception might be a child that is so emotionally torn that there are suicidal threats or attempts.

The second category is when the child is a risk from removal from the jurisdiction.  That means there is a substantial action of either moving the child to another state or country or a substantial and believable threat that the child is about to be removed from North Carolina or the USA.

The procedure is that your attorney with your verified signature files a Motion with the Court for Emergency Custody.  A skilled family lawyer can help you determine if you have grounds for Emergency Custody.  Otherwise, you will have to file a regular motion for custody or a motion for custody modification if there already is an order.  These other motions will take a long time to hear, most likely and you will have to attend custody mediation in the county where the case is pending.

Once your Emergency Custody Motion is filed, your lawyer (following the local rules of that County and notice to opposing counsel) will approach a District Court Judge for an Ex parte Hearing to determine if the Judge agrees that a child is at risk as described herein. Thereafter, there will be a ten day hearing.  Various counties have different philosophies on how long each side has for the ten day hearing.  It might be as little as thirty minutes a side or it might be all day.   Plan to be concise and have your medical, school, DSS worker and essential witnesses on hand.