How do I Obtain Emergency Custody in North Carolina?

Emergency Custody may be awarded in North Carolina by a temporary court ex parte order if the minor child is either abandoned, or the child, sibling, or parent is threatened with mistreatment or abuse. Such abuse usually must result from some type of sexual abuse or severe physical abuse and Emergency Child Custody Orders are rarely awarded.

In the event that a North Carolina Court awards temporary emergency custody over a child from another state, the court who issues the order must communicate with the Court with jurisdiction to work toward a final resolution.

Once Emergency Child Custody is granted the court may then issue a warrant to remove the minor child from his or her current residence and place the child with the individuals whom now have emergency Custody. After this Occurs, a temporary hearing will occur within ten days, then both parties will resort to Alternative Dispute Resolution, and then finally litigation.

G.S. 50-13.5(d)(3) sets out the only two findings that open the door

In North Carolina an order entered before the other parent has been served or notified is governed by G.S. 50-13.5(d)(3): “A temporary order for custody which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts.”

Two things follow from the wording. First, there are exactly two permissible findings, and neither is general harm or general unsuitability. The risk must be one of bodily injury or sexual abuse, or of abduction or removal from the State for the purpose of evading North Carolina jurisdiction. Second, the restriction is aimed at orders that change the living arrangements of a child or change custody. An ex parte order that does neither of those things falls outside the subdivision’s prohibition.

The findings have to appear in the order itself. A verified complaint or affidavit supplies the facts, but it is the court’s written finding that carries the order, and an order that recites conclusions without the underlying facts is the one most easily dissolved once the other parent appears. Nothing in the subdivision obliges a court to enter such an order even where the findings could be made; making the findings opens the door, it does not compel the court through it.

An ex parte custody order is not a temporary restraining order

This distinction has practical consequences and it is settled. In Campen v. Featherstone, 150 N.C. App. 692 (2002), the Court of Appeals rejected the argument that an ex parte custody order is a temporary restraining order under Rule 65 of the North Carolina Rules of Civil Procedure, holding that such an order is a temporary custody order entered pursuant to G.S. 50-13.5(d). Rule 65’s automatic expiry therefore does not apply of its own force, and the order does not lapse of itself.

G.S. 50-13.5(d)(3) itself sets no deadline for a return hearing. Many North Carolina districts nevertheless calendar one promptly as a matter of due process, and a respondent who has been served may move to dissolve or modify the order. A separate authority sits alongside all of this. G.S. 50-13.5(d)(2) allows the court, “if the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child,” to enter orders for the temporary custody and support of the child “pending the service of process or notice as herein provided.” That subdivision operates while service or notice is still outstanding rather than after it has been completed; once the respondent has been served and heard, the court decides on the fuller record whether a temporary arrangement should continue, be altered or be set aside. Until the order is modified or terminated, it stands.

A law enforcement pick-up requires a separate warrant under G.S. 50A-311

An order awarding emergency custody does not by itself put an officer on the doorstep. G.S. 50-13.5(d)(3) is explicit: “A temporary custody order that requires a law enforcement officer to take physical custody of a minor child shall be accompanied by a warrant to take physical custody of a minor child as set forth in G.S. 50A-311.”

That warrant belongs to the enforcement half of the Uniform Child-Custody Jurisdiction and Enforcement Act. Under G.S. 50A-311(a), upon the filing of a petition seeking enforcement of a child-custody determination the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child where the child “is immediately likely to suffer serious physical harm or be removed from this State.” Issuing it is a matter for the court: under subsection (b), if the court, on the testimony of the petitioner or another witness, finds that the child “is imminently likely to suffer serious physical harm or be removed from this State,” it may issue the warrant, and the petition “must be heard on the next judicial day after the warrant is executed unless that date is impossible,” in which case the hearing is held on the first judicial day possible.

Subsection (c) fixes the contents. The warrant must recite the facts upon which the conclusion of imminent serious physical harm or removal from the jurisdiction is based, direct law enforcement officers to take physical custody of the child immediately, and provide for the placement of the child pending final relief. Under subsection (d) the respondent must be served with the petition, warrant and order immediately after the child is taken into physical custody.

The reach of the warrant is set by G.S. 50A-311(e), and it is conditional rather than open-ended. A warrant to take physical custody of a child is enforceable throughout North Carolina. The court may authorize law enforcement officers to enter private property to take physical custody of the child only if it finds that a less intrusive remedy is not available, and may authorize a forcible entry at any hour only where the exigent circumstances of the case require it. The warrant directs officers rather than the applicant, so a parent who holds one does not collect the child personally.

Emergency jurisdiction over a child who belongs to another state’s case

G.S. 50A-204(a) supplies a separate and narrower kind of authority: “A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” Presence of the child in North Carolina is a precondition, and abandonment is expressly one of the triggers.

The authority is temporary by design. Where there is no previous custody determination and no proceeding under way in a state with jurisdiction, an order under this section “remains in effect until an order is obtained from a court of a state having jurisdiction,” and it becomes a final determination only if it so provides and North Carolina becomes the child’s home state. Where a prior determination entitled to enforcement does exist, or a proceeding has been commenced in a state with jurisdiction, G.S. 50A-204(c) requires the North Carolina order to specify a period the court considers adequate for the applicant to obtain an order from the state with jurisdiction, and the North Carolina order then lasts until that order is obtained or the period expires.

G.S. 50A-204(d) then requires contact between the courts. On being informed that a proceeding has been commenced in, or a determination made by, a court of a state having jurisdiction under G.S. 50A-201 through 50A-203, the North Carolina court “shall immediately communicate with the other court.” G.S. 50A-110 governs how that communication happens: the parties may be allowed to participate, and if they are not, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made. Communication about schedules, calendars and court records may occur without informing the parties; otherwise a record must be made and the parties informed promptly and granted access to it.

Chapter 50B is a second emergency route with its own limits

A domestic violence protective order can carry custody. G.S. 50B-3(a)(4) allows the court to “award temporary custody of minor children and establish temporary visitation rights,” pursuant to G.S. 50B-2 where the order is granted ex parte, and pursuant to G.S. 50B-3(a1) where it is granted after notice or service of process. Under subsection (a1) the court decides custody on the best interest of the minor child, with particular consideration given to the safety of the child, and may impose conditions such as supervised exchanges, supervised visitation, completion of an abuser treatment program or abstinence from alcohol or controlled substances around a period of contact.

The limits are built into the statute. A temporary custody order entered under Chapter 50B is without prejudice and is for a fixed period of time not to exceed one year. It is emergency protection, not a parenting plan, and the Chapter 50 custody action remains the place where the longer question is decided.

A Department of Social Services petition can displace the Chapter 50 case

Where the concern is abuse, neglect or dependency, the county Department of Social Services can act under Subchapter 1 of Chapter 7B, and that displaces the private custody case. G.S. 50-13.1(i) provides that if the child whose custody is the subject of a Chapter 50 action is also the subject of a juvenile abuse, neglect or dependency proceeding, the Chapter 50 action “is stayed as provided in G.S. 7B-200.”

The stay is not a consequence of the filing alone, and it is not unconditional. G.S. 7B-200(c) attaches it when the court obtains jurisdiction over the juvenile, it operates on the custody issue in the civil action, and it gives way where the juvenile proceeding and the custody claim are consolidated or where the court in the juvenile proceeding enters an order dissolving it.

The juvenile proceeding may also bring its own advocate, though the duty is a limited one. Under G.S. 7B-601(a), when a petition alleges a juvenile is abused or neglected, “the court shall appoint a guardian ad litem to represent the juvenile,” and the guardian ad litem investigates the facts, the needs of the juvenile and the resources available to meet them. Where a petition alleges only that the juvenile is dependent, the court may appoint a guardian ad litem but is not required to. In a Chapter 50 custody case a guardian ad litem for the child is discretionary rather than mandatory.

What comes after an emergency order

An emergency order is the opening of a case rather than the resolution of one. Service of process follows under the ordinary civil rules, and the matter returns to court for a hearing at which the respondent participates. A contested custody or visitation issue is then set for mediation under G.S. 50-13.1(b) in any district with a program established under G.S. 7A-494, including Mecklenburg County — though G.S. 50-13.1(c) lists allegations of abuse or neglect of the minor child, and allegations of alcoholism, drug abuse or domestic violence between the parents in common, among the examples of good cause for which the court may waive mediation.

Whatever order emerges is enforceable and modifiable in the ordinary way. Modification proceeds under G.S. 50-13.7(a) on a motion in the cause and a showing of changed circumstances, subject to G.S. 50A-201, 50A-202 and 50A-204. And where a court has awarded custody of a child under the age of sixteen, taking or transporting that child out of North Carolina, or keeping the child outside the State, with intent to violate the order is a criminal offense in its own right under G.S. 14-320.1, punishable as a Class I felony; keeping the child outside the State in violation of the order for more than seventy-two hours is prima facie evidence that the person charged intended to violate it at the time of taking.

Common questions

What must a North Carolina court find before granting emergency custody without notice?

Under G.S. 50-13.5(d)(3) a temporary order changing a child’s living arrangements or changing custody cannot be entered ex parte unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse, or that there is a substantial risk the child may be abducted or removed from North Carolina to evade the jurisdiction of its courts. Those are the only two findings the subdivision permits, and making them opens the door rather than compelling the order.

Does an emergency custody order expire automatically after ten days?

No. G.S. 50-13.5(d)(3) contains no expiry period, and Campen v. Featherstone, 150 N.C. App. 692 (2002) held that an ex parte custody order is not a Rule 65 temporary restraining order but a temporary custody order under G.S. 50-13.5(d). Many districts calendar a prompt return hearing as a matter of due process, and a respondent may move to dissolve or modify the order, but the order remains in effect until the court modifies or terminates it.

Can North Carolina grant emergency custody of a child who lives in another state?

Yes, on a temporary basis. G.S. 50A-204(a) gives a North Carolina court temporary emergency jurisdiction if the child is present in this State and has been abandoned, or if it is necessary in an emergency to protect the child because the child, or a sibling or parent, is subjected to or threatened with mistreatment or abuse. G.S. 50A-204(d) then requires the North Carolina court to communicate immediately with the court in the state that has jurisdiction.

How is an emergency custody order enforced by law enforcement?

Through a warrant. G.S. 50-13.5(d)(3) requires a temporary custody order that directs a law enforcement officer to take physical custody of a child to be accompanied by a warrant under G.S. 50A-311. The court may issue that warrant where it finds the child is imminently likely to suffer serious physical harm or be removed from the State; the warrant must recite the facts supporting that conclusion, directs officers to take immediate physical custody, and is enforceable throughout North Carolina, with the petition heard on the next judicial day after execution unless that is impossible.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.