Kimberly D. Saxton, Esq.
Ada G. Vicuña, Esq.
William W. Toomer IV Esq.

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 2.0

TEMPORARY CUSTODY IN NC: WHAT CONSTITUTES AN EMERGENCY?

October 27, 2015

​Clients often contact the Firm stating that an emergency exists and they are in need of an immediate custody order for their minor child(ren). Unfortunately, the custody process can be long and complicated and parties asking for custody sometimes may not have time to wait for a permanent custody hearing due to dangerous or otherwise extenuating circumstances.

In North Carolina, there are two primary ways to obtain temporary custody of a minor, while the parties await their permanent custody trial, which often times will not be heard until months, or even up to a year, after the initial request is made. The Courts recognize that it may not be in the best interest of the child to make parties asking for child custody to wait this long for a custody decision. This is where temporary custody orders come into play.

Under North Carolina law, a person can petition the court for emergency child custody if there is a substantial risk that the minor child(ren) are at risk of physical and/or sexual abuse or if there is a substantial risk someone will remove the minor child(ren) from the State for the purposes of evading jurisdiction. However, these circumstances are extremely rare and the majority of cases do not rise to this level of concern.

Under local rules, applying to Mecklenburg County, North Carolina, there is an alternative means of obtaining temporary child custody during the period before a final custody determination can be made. Parties involved in an on-going child custody case can request from the court a Temporary Parenting Arrangement (TPA) under limited circumstances. Pleadings for a TPA hearing should be made only in situations that do not rise to the level of an emergency, but which significantly affect the well-being of the child(ren). The party requesting a TPA would need to demonstrate at a hearing one or more of the following: (i) the other parent or guardian is unreasonably restricting, or altogether denying, the other parent or guardian access to the minor child(ren); (ii) the other parent or guardian is trying to relocate with the minor child(ren) (within the State); and/or (iii) the other parent or guardian has substances abuse and/or mental health issues which pose some risk for the child(ren).

These are two very narrow avenues available to some parties needing to address the living arrangements of children before a full hearing on the merits can be held. Temporary custody orders will typically not be granted simply because the parents or guardians of a minor cannot agree about how custody should be split. If you are involved in a custody case or are considering suing for custody of a minor child(ren), contact Kimberly Saxton & Associates, PLLC today to schedule a consultation in order to be fully informed of your rights and to receive an experienced professional opinion about whether a temporary custody order would likely be issued in your situation.