Child custody matters are serious issues that need thorough and thoughtful assessment of the Court before rendering an order. However, some instances might call on the Court to issue an emergency custody order, also known as ex parte custody, without having a formal hearing.
Generally, Courts in Louisiana issue their orders regarding custody after a trial where evidence from both sides of the dispute is presented, assessed and analyzed. However, there are emergencies when the Court has to issue a temporary order immediately before a trial, and this type of court order is called ex parte custody order.
What is an Ex Parte Custody Order?
An Ex Parte Custody Order is an action filed with the Court by a parent without informing the other parent. These types of orders are called “ex parte” and are only temporary and will expire at the formal hearing when both parents have the chance to present evidence to the Court.
Given its urgent nature, an ex parte custody order can only be filed if there is a valid basis for the petition. The circumstances must be situations that pose immediate and irreparable harm to the child.
What Are the Circumstances as Basis to File for Ex Parte Custody in Louisiana?
As noted above, custody orders are granted when both parents can present their arguments and case to the Court. However, an ex parte custody order is reserved only for specific situations. Moreover, the petition to file an ex parte custody requires a basis for seeking the Court’s interference.
Such basis includes, but are not limited to the following:
- Immediate and irreparable harm to the child
- Child abuse
- Child neglect
- Substance abuse in the presence of the child
- Presence of a sex offender in the home of the child
- If the other parent has been convicted of a serious and violent offense
Immediate and Irreparable Harm to Child
Under La. Code of Civil Procedure Article 3945, an ex parte custody order may be obtained if it can be shown that a child will suffer immediate and irreparable harm unless the Court intervenes and issues an ex parte custody order.
The term immediate refers to the urgency of time when the threat of irreparable harm is posed when the Court can issue the emergency custody order.
The term irreparable refers to the harm posed to the child that is serious and permanent. Essentially, this refers to a type of severe trauma that cannot be reversed once the child has been exposed to it.
In totality, the Court is urged to act and issue an emergency custody order immediately to prevent the other parent from exposing the child to a grave danger that cannot be remedied once it is committed.
The Domestic Abuse Assistance Act, R.S. 46:2131 et seq., provides a civil remedy for domestic violence victims to afford immediate and easily accessible protection. This law acts as a basis for the parent to file a petition for ex parte custody with the Court to protect their child from the effects and threat of domestic abuse from the other parent.
The Children’s Code Article 1564 et seq. understands the legal and social complexities posed to a child by a violent environment in a domestic setting. Under this law, the child is afforded immediate and easily accessible protection. This law provides a basis for a parent to petition the Court for direct intervention to remove a child from a violent environment that the other parent poses.
Post-Separation Family Violence Relief Act
The Post-Separation Family Violence Relief Act, R.S. 9:361 et seq. recognizes that there are circumstances of the heightened threat of violence or abuse when divorce or separation happens in a family. This threat of danger can be severe enough to affect a child’s well-being permanently.
Under this law, the Court is asked for an ex parte custody order to remove the child from physical danger, whether it be a threat or actual abuse from the other parent.
How Do You File For An Emergency Custody Order?
- Identify criteria to base your petition to the Court for an emergency custody order.
- File a petition with the Court for an emergency hearing, along with the relief sought, which could be temporary custody or temporary discontinuation of visitation of the other parent to the child. Your family attorney can file this petition on your behalf to ensure that the document is timely and adequately prepared for the Court’s review.
- The Court will set an immediate hearing to assess the situation and hear evidence pertaining to the emergency situation. Your family attorney can attend this emergency hearing with you or on your behalf. The attorney can call on witnesses, present evidence, and plead with the Court on you and your child’s behalf to issue the emergency custody order.
- If the judge grants the emergency custody order, then a formal hearing will be set at a later date.
- The other parent will then be notified of the formal hearing for them to attend and present their case to the Court.
- The emergency custody order will expire on the day the formal hearing is set.
As shown above, an ex parte custody order is a severe petition to the Court to immediately issue an injunction to stop or prevent extreme danger and risk to the child. This type of petition is time-sensitive and may escalate harm and issues between the parties with severe repercussions to the child if not handled appropriately. Therefore, having an experienced family attorney handle your case is critical to ensure that the Court can act swiftly and appropriately to protect your child and yourself from any danger.
If you need to file a request for temporary ex parte child custody, please give us a call (225) 963-9638, or you can click here to contact us about scheduling a free consultation. Our highly experienced family law attorneys can help you assess your case and represent you and your child’s welfare and interests.