Sunday, December 16, 2007

Emergency Custody - A Starting Point

I ran across this 2000 report on a disciplinary action which might give some insight into the question of emergency custody. No statute defines emergency. Which means what is an emergency depends on the judge. I had one judge in Madison County take evidence that went back over a year before the date of the custody petition on the basis that related to the emergency.

This decision does not give substance to the word emergency but does give us insight into the proper procedure for emergency custody cases. This proper procedure comes from IC 31-17-2-2 which incorporates Indiana's Rules of Trial Procedure into the custody statutes, specifically Trial Rule 65(B) (temporary restraining orders).

Although not raised during this proceeding, we note that the judge should inquire of counsel seeking emergency relief as to whether other parties are represented and the effort to contact other counsel or unrepresented presented parties. Canon 3(B)(8) of the Indiana Code of Judicial Conduct specifically prohibits a judge from considering ex parte communications, except under certain specified circumstances.
Summing up, let us say that emergency custody requires urgency similar to that required of a temporary restraining order. That without the emergency order an “immediate and irreparable injury, loss, or damage will result” to the child. Then the procedure outlined above kicks in.

I think one more point needs made about emergency custody which is not so clear from all this talk about procedure. Indiana's child custody statutes recognize only a petition for custody or for modification of custody. Adding the word "emergency" to a custody petition only adds the requirements of showing an emergency and an additional hearing. Even if the court decides against their being an emergency, there remains a further hearing as a non-emergency custody petition.

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