Temporary Custody in New York
Temporary custody orders are a short-term solution to parenting disagreements that can wait for a regular hearing but cannot wait until the end of the legal proceedings.
Also referred to as pendente lite orders, these orders can lay out the details of physical custody, visitation and child support during the course of the litigation process or settlement process. They are usually issued at the first appearance or conference. From that point, they remain in effect until a judge modifies them or issues final orders.
Temporary custody orders can be agreed upon between the parents or requested from the court. If a parent does not agree with the terms of a temporary order, he or she can propose another.
B their nature, temporary custody orders focus on short-term issues and solutions. Nevertheless, attorneys caution that they can have an impact on final orders and they should always be approached with that in mind.
How can I get temporary emergency custody as part of a custody petition?
For children in New York, parents can apply for temporary custody in New York as part of a custody petition. If you are looking to win an ex parte temporary custody order, which can be issued without the other parent being notified in advance, judges will generally only grant temporary ex parte custody orders in extreme situations. You may be obligated to prove to the judge that there is immediate and present threat of abuse and it is necessary to protect you or your children or that there are other urgent circumstances.
If New York is not your child’s home state, you still have a right to file for temporary emergency custody (jurisdiction) in a New York court as long as your child is presently living in the state and it is necessary in an emergency to protect the child, a sibling, or parent of the child. If there is not a custody order in place from another state, then a New York court could hand down a temporary emergency custody order that could stay in effect until the home state issues an order that says otherwise. After six months, if the child continues to live in New York and no other custody petition is filed in another state, then that temporary emergency order could become a final order. If there is already a custody order from another state, the New York temporary emergency custody order will state a period of time that the order is in effect with the purpose of allowing the victim to return to the court that issued the original order to attempt to modify it. That said, if the New York judge perceives that the child is in immediate (imminent) risk of harm, the temporary emergency order may remain in effect until the original state’s court is updated to assure the protection of the child. In such scenarios, the judge in the New York Family Court is supposed to communicate with the judge in the original state to determine how to best protect the safety of the parties and the child and to determine a period for how long the temporary order will last.
Ex parte orders might be necessary in an emergency, such as if a child is at risk of being harmed or removed from the state within a few days.
Lawyers usually recommend filing for emergency orders in the family court for its faster timeline. If you are on the verge of separating or divorcing through Supreme Court, you can proactively file your emergency issue in family court. Another option available to you is to contact Child Protective Services. This agency will conduct an investigation to determine if the issue necessitates an emergency order.
When you launch your case or go to modify an order, your attorney needs to request your emergency order through an Article 6 custody petition or an Article 8 family offense petition. Using the latter, the family offense petition, the offending party can potentially be slapped with criminal charges.
Normally, a judge will hear your case the day you file. You will be sworn in under oath and given a chance to explain your situation. The respondent may inform the judge they’re contesting, but they can’t present information.
If the judge determines that it is necessary to issue the emergency order, he or she will schedule a follow up hearing, at which the order can be terminated, extended or replaced by temporary orders. At this hearing, the accused party can now present evidence.
Working with a well informed temporary custody lawyer is a smart way to make certain you get the results you really need. Call us right away so we can step in and help secure the safety of your child.
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