How Hard Is It to Get an Emergency Custody Order in a Fairhaven Divorce?

Divorce is a challenging process, and when it involves the safety of children or parents, it can become even more stressful. Understanding when and how to seek an emergency custody order from a Massachusetts family court is, therefore, important for the safety and well-being of everyone involved. Here’s what you need to know should you find yourself in such a situation.

Showing the Need for an Emergency Custody Order

To obtain an emergency custody order in Fairhaven, which may include seeking shared custody or sole custody, there typically must be a significant risk posed to the child’s or parent’s safety. This includes, but is not limited to the following:

• Serious mental illness
• Substance abuse
• Physical or sexual abuse
• Serious neglect

If the Massachusetts Department of Children and Families (DCF) is involved, having their support can further strengthen your case.

Restraining Order Vs. Emergency Custody Order

People often are confused about the difference between a restraining order and an emergency custody order. This confusion is common, but once you understand what each order entails, you, along with a Fairhaven family law attorney, can better gauge which order would be best for your individual circumstances.

The simplest way to explain the difference is this: If there is actual violence or the threat of violence — specifically, an imminent threat of serious bodily harm — a restraining order is the way to go. The restraining order is the fastest and most effective way to use the court to arrange protection. This step is quite effective for safeguarding individuals from immediate danger.

It’s also important to note that if the case involves family law issues like custody or divorce, you should seek a restraining order through the probate and family court instead of the district court.

Doing so streamlines the process. It makes it easier for a probate and family court judge to update a restraining order if it originated in the same court. Handling the matter within a single court system avoids the difficulties of coordinating between different courts, which can delay and complicate proceedings.

When deciding whether to seek an emergency custody order, you must be prepared to present clear evidence of the risk involved. This evidence can include documentation of physical injuries, police reports, or testimony from witnesses who have observed the abusive behavior. The more concrete and compelling your evidence, the stronger your case will be.

Filing in a Massachusetts probate and family court is more suitable when custody or financial issues are involved. While a restraining order can address high-level concerns, it won’t delve into the specifics of custody or financial matters, which are better suited for an emergency custody filing. Though a restraining order can cover these issues on a really high-level basis, a district court (as opposed to a probate and family court) will not get into the weeds on them.

Process for Filing an Emergency Custody Order in Divorce

Filing for an emergency custody order is not a decision to be taken lightly. The process involves several factors, each of which necessitates careful attention to detail.

Unless there is a real risk to your safety or the safety of the children, you should consult a Massachusetts family law attorney before filing for an emergency custody hearing. An attorney can clarify whether your situation qualifies as an emergency. This approach helps maintain your credibility with the court, so a judge will be more likely to grant your request. However, if you must act quickly due to a real safety issue, then err on the side of caution and take action. You should always prioritize your safety and your children’s safety.

The emergency custody filing must be walked into court. This means you have to physically go to the court to submit your documents and request a hearing. You can request either an immediate (ex parte) order or a short order notice. An ex parte order is an order issued without the presence of the other party. This is appropriate when there is too great a risk to wait for a two party hearing. On the other hand, a short order notice provides for a sooner hearing date than usual. Sometimes a judge will issue both an ex-parte order and schedule a hearing date only a few days out.

Filing motions without a legitimate emergency to back them up can harm your credibility with the judge. Courts take emergency requests very seriously and expect that they are used only in real crises. If you file an unsubstantiated emergency motion, it can negatively impact you in future proceedings, even if you have not intended to weaponize emergency filings.

For example, when individuals file for emergency hearings over minor disagreements or non-urgent issues, and judges perceive that these individuals are using the court’s resources unnecessarily, they become less inclined to grant emergency relief. Therefore, objectively assessing the situation before filing and deciding if it qualifies as an emergency is critical. If you don’t, misuse of the emergency process will likely backfire.

Because there usually must be some sort of safety element to get into court on an emergency basis, it will be harder to call the situation an emergency if the issues are purely financial. If, however, there is some risk to you or the children, and the protection you need involves getting your spouse out of the home to give you exclusive use and occupancy of it, your issue is probably a better fit for an emergency custody filing.

Going to Court

Once you have decided to file for an emergency custody order, the next step is to prepare for the court proceedings. At the initial hearing, the judge will decide whether to issue any requested orders ex parte. Typically, this is followed by scheduling a two-party hearing within a short period of time.

During the first hearing, the judge will evaluate the evidence presented to determine if immediate action is necessary. This hearing is brief but nonetheless vital. If the judge is convinced of a genuine emergency, they may issue an ex-parte order, discussed in the following section, to address the immediate risk.

Following the initial ex parte hearing, the court will schedule a two-party hearing where both parties can present their respective cases in detail. This hearing typically occurs within a few days of the initial filing. But it can sometimes be a couple of weeks out or longer depending on the court’s schedule and the nature of the emergency. During this two-party hearing, you and the other parent will have the opportunity to provide evidence and argue your positions. The judge will then make a more informed decision regarding the custody arrangement and any necessary protective measures.

It’s imperative to be well-prepared for both hearings. As you prepare, gather all relevant documentation, including medical records, police reports, and witness statements. If you have a history of communication with the other parent demonstrating the risk to the child’s or your safety, bring those records as well. The more organized and compelling your presentation, the better your chances are of obtaining the desired court orders.

Potential Outcomes of an Emergency Fairhaven Custody Order in Divorce

The possible results of an emergency custody order hearing can differ based on the particulars of the case. Common issues addressed in these hearings include whether a parent needs to be removed from the home and whether parenting time should be suspended or supervised.

In many cases, the judge may grant temporary custody to one parent while restricting the other parent’s access to the child. This can include ordering supervised visitation, where the other parent is only allowed to see the child in the presence of a neutral third party. Supervised visitation protects the child’s safety while facilitating the child in maintaining a relationship with their other parent.

Another potential outcome is the removal of a parent from the family home. If the judge determines that the presence of one parent presents a risk to the safety and well-being of the other parent or the child, they may order the removal of that parent from the home. This allows the remaining parent and children to stay in a familiar and stable environment without the immediate threat of harm.

In some cases, the judge may also issue orders related to financial support. For example, if the custodial parent requires immediate financial assistance to care for the child, the judge may order temporary child support or spousal support. These financial orders allow the child to have their needs met while the case is pending.

It’s important to understand that emergency custody orders are temporary solutions. They are designed to address immediate risks and provide a safe environment for the child while the court works toward implementing a more permanent custody arrangement. Once the immediate crisis is addressed, the court will proceed with the standard custody determination process, considering factors such as what’s in the child’s best interests and the long-term stability of the proposed custody arrangement.

Hire a Fairhaven divorce lawyer to obtain an emergency custody order in divorce.

The prospect of obtaining an emergency custody order in Massachusetts can be daunting. Thus, it’s advantageous to first understand the criteria and procedures involved. If there is a real risk to your safety or that of your children, don’t hesitate to act quickly. Consulting with an attorney can help you present your case effectively, maintain your credibility, and increase the likelihood of a favorable outcome.

Our team of experienced family law attorneys at Farias Family Law prioritizes safety. With decades of cumulative experience between us, our skilled and compassionate legal team can help you make informed decisions to protect yourself and your loved ones during a divorce.

By learning about the legal tools available to you and working with one of our experienced Fairhaven child custody attorneys, you can better navigate the complexities of emergency custody orders, safeguarding your family’s well-being throughout the divorce process. Call our office today.