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Emergency Custody in North Carolina

emergency custody

Parents should be the people that children feel safest with—but sometimes a parent isn’t healthy for a child. If you’re concerned about the immediate wellbeing of a child, you have options for helping the child transfer to a safe environment (especially if you’re a parent, close relative, or other care provider).

One of the most urgent methods to help a child in a dangerous custody situation is a motion for emergency custody—an option in which you can quickly ask a judge for temporary custody to provide safety to an endangered child. However, this process can be complex, especially when emotions are running high. In this article, our team walks you through everything you need to know about emergency custody in North Carolina.

North Carolina Child Custody Law

how to file for emergency custody

In North Carolina, “legal custody” grants a parent or guardian the right to make major life decisions for a child until they reach the age of 18; “physical custody” refers to the right of a parent or guardian to keep the child in their care, within their household. When separated parents share these responsibilities, it’s referred to as “joint custody.”

In some custody cases, a judge may decide that only one parent can make important life decisions and providing necessary care, but that the second parent is not a danger to the child. In this case, the first parent will be granted “primary custody” and take full responsibility for the child.  Meanwhile, the second parent is given specific periods of custody time known as “secondary custody.”

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What Is Emergency Custody and Who Can Petition It?

how to file for emergency custody

When granted, an emergency custody order alters an existing custody arrangement.

For instance, if one parent is putting the child in their custody in immediate danger, the law gives the other parent the ability to go before a judge, present the situation, and seek temporary custody. This order will help the parent remove the child from the current parent’s custody and take the child into the safety of their own care. This emergency order will only be in effect for a short period of time. While this procedure mostly applies to parents, third parties, such as grandparents, may be able to utilize this procedure in the appropriate case.

Emergency custody is only granted in serious cases. You can’t obtain custody because you disagree with a parent’s parenting decision; in North Carolina, there must be proof of impending and physical danger. These situations include:

  • When the child is at a substantial risk of bodily injury: parents may have substance abuse problems
  • When the child is at a substantial risk of sexual abuse: this could be a parent or someone the parent allows around the child abusing the child
  • When the child is at a substantial risk of removal from North Carolina: this must be for the purpose of avoiding the authority of North Carolina courts (this can include relocating a child during a divorce, but not always)

RELATED ARTICLE: Can I Prevent My Spouse from Seeing the Children During a Divorce?

Who Can Get Emergency Custody?

In North Carolina, most of the successful emergency custody cases are filed by:

  • Another parent
  • A grandparent
  • A close relative such as an aunt, uncle, or sibling who is of age
  • Someone who have previously cared for the child but are not their parent

A judge has jurisdiction to rule for emergency custody only if the child has lived in North Carolina for at least six months, or since birth if the child is younger than six months old. In some cases, this restriction may be lifted for the safety of the child.

If you need to petition for emergency custody of a child, consider hiring an experienced child custody attorney to guide you through the process.

What Happens After Emergency Custody Is Granted?

what happens after emergency custody is granted

Once you’ve visited the courthouse and filed an emergency custody petition (more on that process in a bit), the judge will decide whether the case is extreme enough to warrant an emergency order.

Depending on the case, the judge could take anywhere from a couple minutes to a few days to decide the outcome.

If your motion is granted, here’s what will happen:

  • You will be granted temporary and short-term custody the moment the order is given.
  • The parent the child is with must be served with the Motion and the Order stating that custody has been changed.
  • Depending on the situation, law enforcement may help remove the child from the original guardian’s care.
  • The judge will schedule a hearing very soon during which both you and the original parent will have a chance to present your case. In this situation, legal counsel can improve your outlook.
  • Finally, the judge will make a decision on whether to go back to the custody arrangement that was in place or make a new arrangement. Depending on what decision the judge makes, the case will likely proceed on for a permanent custody trial.

How to File for Emergency Custody in North Carolina

what happens after emergency custody is granted

While the emergency custody petition process is complicated, legal counsel can help you ensure you complete every step correctly:

  1. Identify the district courthouse where you’ll file your petition for emergency custody.
  2. Obtain and complete the necessary paperwork.
  3. Print two copies of the necessary forms, one to submit to the court and another to give to your attorney for your records.
  4. Gather third-party statements to back up your claims and strengthen your case. Include third party name, residence, relationship to the child in question, and contact information.
  5. Compile any relevant evidence, such as past and current custody orders, any pending charges of domestic violence or abuse, any pending termination of parental rights, relevant medical records or CPS reports, and any relevant screenshots, text messages, or photos.
  6. Your attorney will file the complaint or motion in district court.

Keep in mind that you must provide only factual, relevant, and credible information. If you provide false information, you may be held in contempt of court or receive a fine (and if you already have shared custody of the child, you may lose it). Working with a skilled family law attorney from Myers Law Firm is one of the best ways to ensure the entire process is smooth, accurate, and in the best interest of the child.

What Happens if an Emergency Custody Order Is Denied?

There is always a possibility the judge will deny your request for emergency custody. When this happens, it’s usually because the judge feels you didn’t prove the existence of the qualifying conditions.

While a delay isn’t ideal, there are still a few things that may happen in your favor. A psychologist and Child Protective Services (CPS) may conduct further investigation into your case. You also have the option to pursue custody through the standard process. This will take a bit longer, as you’ll need to provide legal notice and service requirements so that the child’s guardian can have a voice in the courtroom.  If you decide to pursue custody through traditional routes, don’t wait to contact an attorney who can help you understand your options, complete every step in the process correctly, and advocate on your behalf. This is support is critical, especially in cases where children are potentially in danger and emotions are running high. The Myers Law Firm team has decades of experience supporting families like yours. Our team is ready to meet with you and help you take the next best step.

RELATED ARTICLE: 5 Reasons a Judge Will Deny a Custody Order

Contact Myers Law Firm Today

For fast, skilled, and dedicated help filing your emergency custody order, reach out to Myers Law Firm at (888) 376-2889 or through our online contact form.

Myers Law Firm has years of experience and a reputation for skilled and compassionate representation to help you through this difficult time.  Contact us today to set up an initial consultation to discuss your emergency and develop a plan of action.


North Carolina Judicial Branch. Child Custody. Retrieved from https://www.nccourts.gov/help-topics/family-and-children/child-custody

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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