What Constitutes an Emergency Hearing for Child Custody in New Jersey?
By Beverly Bird
Updated November 11, 2019
It’s a parent’s first instinct to protect their child from danger, but sometimes the law can actually make it difficult. Parents with custody and visitation orders can’t always pull up stakes and relocate, hustling their children off to safety, without letting the other parent know where they're going. This can be counterproductive in some cases.
Getting temporary emergency custody can be a solution, and it can be a step toward making long-term custody changes.
How Do You Get Emergency Custody in New Jersey?
The first step in the emergency custody process involves filing an “order to show cause” in the Family Division of the Superior Court in the New Jersey county in which the child resides.
The parent should clearly explain the nature of the emergency in writing and submit this explanation to the court when filing the petition. The parent will also have an opportunity to prove these allegations at a hearing, either through evidence, testimony or both.
The request for an order to show cause should be made along with a complaint for custody if no custody order yet exists, or if a case for permanent custody is still pending.
Reasons for Emergency Custody
An emergency is any situation in which a child is being abused or neglected to the point that a serious and immediate threat exists to the child psychologically, physically or both. The danger doesn’t necessarily have to be intentional. It can result from a parent or guardian struggling with their own problem such as addiction.
The Child Protection and Permanency Agency within the New Jersey Department of Children and Families (DCP&P) can also initiate temporary custody measures. This might be the case if a teacher, doctor, police officer or another adult notifies DCP&P that the child is likely being neglected or abused.
DCP&P will investigate the situation and can take emergency custody of the child if an emergency is deemed to exist. This is referred to as an “emergency removal,” and it will prompt a court hearing where the parents or guardians can appear to defend themselves.
Does a Restraining Order Affect the Proceedings?
Parents have another option for gaining emergency custody in New Jersey when the child's other parent is abusing them. The victim parent can file for a temporary domestic violence restraining order, which will typically – but not always – award custody of the child to that parent until such time as a hearing for a permanent restraining order can be held.
A permanent restraining order can also set terms for custody until a complaint for permanent custody can be filed with the Family Division.
Can a Grandparent File for Emergency Custody?
Any concerned adult, including grandparents, can file an order to show cause, although they must notify the parent or parents that they have done so, allowing them to appear in court to defend themselves. Otherwise, concerned grandparents can notify DCP&P of a suspected problem to have the agency investigate.
How Will a Judge Decide?
A judge will issue an emergency custody order if the court is convinced that irreparable harm will come to the child if such an order isn’t made immediately. It all comes down to the judge’s estimation as to whether the child is legitimately and imminently in danger, and this can rely on the proof that the parent or petitioning party can provide.
What Happens at the Final Hearing?
An emergency order isn’t intended to govern the custody situation indefinitely. It’s good only for a short period of time until a more permanent order can be issued.
A subsequent hearing for a more permanent custody solution must be held within 10 days under New Jersey law when temporary emergency custody is granted. The order to show cause paperwork will be converted to a lawsuit for custody and will usually result in a second court appearance within about a month if a temporary emergency order is denied at the first hearing.
In either case, the judge might order the participation of a child psychologist to evaluate the situation, and might even interview the child himself if she’s considered to be mature enough. The court may require the abusive or neglectful parent to attend counseling or treatment as a condition of visitation when a permanent order is issued.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.