In North Carolina, obtaining “Emergency Custody” of a child is a powerful, but very limited tool. Emergency custody occurs when temporary sole physical custody is granted to one party on the basis of a sworn affidavit alone. Because there is no hearing, Courts take this process very seriously, only granting emergency custody under certain circumstances specified under the law.
North Carolina General Statute § 50-13.5(d)(3) allows for Courts to enter an Ex Parte Emergency Custody Order if one or more of the following conditions exist:
- The child is at substantial risk of bodily injury;
- The child is at substantial risk of sexual abuse; or
- There is a substantial risk that the child will be removed from the State of North Carolina for the purpose of evading the Court.
If any of these circumstances do not exist, Courts are not authorized to enter an Emergency Order for Custody, and the party will be required to go through the normal custody process.
To prove that a “substantial risk” of harm exists, a party must file a Motion for Emergency Custody, containing specific and credible allegations, which are verified by a sworn affidavit. Vague and/or emotional claims will not meet this burden, unless there are specific details to corroborate the substantial risk of harm the child is in.
Given the nature of these emergency situations, Judges typically review the motion within the same day it is filed. If the Judge believes the child to be at risk of substantial harm, the Court will issue an Emergency Custody Order and set a date for a return hearing within 10 days of filing. At this return hearing, both parties will be given the opportunity to present evidence for whether the Emergency Custody Order should remain in place.
If you believe that your child is at a substantial risk of harm as detailed above, it is extremely important that you take the proper steps to obtain emergency custody of the child. Given the delicate nature of this process, an attorney can help you navigate the process, give you advice for whether your situation qualifies, and assist you in the drafting and filing of these motions. Contact an attorney at Ley Law today if you believe you are in need of an emergency custody order.
Abigail Killinger Author
Abigail Killinger is an Associate Attorney at Ley Law, where she brings a client-centered approach to her practice areas, which include Criminal Defense, Family Law, and Civil Matters. Abigail graduated summa cum laude with a B.S. in Political Science from East Carolina University in 2020, where she was awarded the John P. East Scholarship. She went on to earn her Juris Doctor from Brigham Young University’s J. Reuben Clark Law School in 2023.
