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Emergency motion in civil court, new york. What are the

rules on emergency motions?...
Emergency motion in civil court, new york. What are the rules on emergency motions?
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3/22/2018
RayAnswers
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Category: Family Law
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Experience: 30 years as a family law lawyer .
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

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I am assuming you are referencing emergency custody here.Most of these are heard ex parte.

There are many serious circumstances which may arise that would justify pursuing an emergency temporary change of child custody. Most of these emergency orders are undertaken during “ex-parte” proceedings, which means the other party isn’t present for the hearing.

When the situation crosses state lines, consideration is given in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act of 1997 (UCCJEA). The states of Vermont, Missouri, Massachusetts, and New Hampshire do not follow the UCCJEA, but instead follow the Uniform Child Custody Jurisdiction Act of 1969 (UCCJA) which has one fundamental difference. Unlike the UCCJEA, the UCCJA will only allow states without original jurisdiction to allow emergency temporary custody orders only if the children are in danger and not a relative of the children (such as the mother or father).

Generally, states without jurisdiction over a specific custody case will defer to the original state’s custody order. Under emergency circumstances, though, the secondary state has authority to grant a temporary change to that order.

Here you may have filed for such a change in the court with current jurisdiction. Such an order is intended to protect children who are subjected to or are otherwise threatened with serious harm or child abandonment. Examples of circumstances which may necessitate an emergency change may include:

  • Allegations of physical or sexual abuse.
  • Threats of same.
  • Abandonment of the children.
  • Some measure of custody was awarded to a convicted sex offender.
  • Allegations of substance abuse which put the children in danger/

In NY, the courts consider granting emergency orders if a child’s parent or sibling have been subject to abuse. In those cases, the objective allows a parent to flee an abusive situation and seek emergency temporary custody .

The children for which such an order is sought must be present within NY in order for a court to authorize an emergency custody order change. Of course, the children must also have been abused or threatened with abuse (or abandoned).

The court will conduct a full, formal hearing before issuing an emergency order. Additionally, all parties are required to be notified and given an opportunity to be heard. A temporary order of protection can be granted prior to the actual hearing. Very often, it is.

There is also a requirement of notification by the court hearing the emergency case to notify the court holding jurisdiction over the custody arrangement. These courts will hold conference and make a determination as to the nature of the protection to be granted.

When you file a petition asking for emergency custody, the petition must contain very specific examples of abuse or threats thereof. This can be accomplished in several ways, including but not limited to:

  • Police reports and/or arrest records of the other parent.
  • Records of relevant prior convictions of the other parent.
  • Results of prior protection order proceedings.
  • Records from Child Protection Services agencies.
  • Medical and/or dental records.
  • Records from child psychologist’s evaluations of the children.

It is important to support your allegations with objective evidence. False allegations are detrimental to everyone, including the children. A failure to support your contentions with meaningful objective evidence will restrict the court’s ability to rule an emergency custody change is justified.

Emergency custody orders are only temporary. Once a temporary custody order has been granted, you must file petitions and initiate proceedings to make these new orders permanent. This is done through the courts holding original jurisdiction over your case. The temporary order will only remain in effect until such time as the original court issues a new, permanent order or the period of the temporary order expires. It behooves you to act quickly for a permanent change to the original custody order.

So here you have top prove an emergency exists, that formal notice is not possible given the emergency, and that you should be granted custody or other relief that you asked for.

I appreciate the chance to help you today.Thanks

If you can positive rate5 stars it is much appreciated.

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Customer reply replied 3 months ago
thank you

Have a great day and good luck here.

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