As we all know, life happens, and circumstances change. That custody order you once had may seem to become impractical as time goes on. Fortunately, Indiana has established a specific statutory code to deal with the modification of custody. But, what happens if an emergency arises and you need to file for emergency custody of your child? Is this possible? How does it vary from normal modification of custody? In this blog, we look to provide answers to these questions and provide a brief overview of emergency custody modification in Indiana.
Sometimes, situations arise in which the court’s attention and intervention is needed immediately. For example, say that the parent with primary custody of your children decides that they are going to move to Europe in the next couple days, and informs you that you are no longer going to be able to see the children. In such a situation, you do not have the luxury to time to file a custody motion with the court and wait for the court to set a hearing date because if you wait, you may never see your children again. In this scenario, the non-moving parent could file what is known as an emergency motion to modify custody. As explained more fully below, filing this emergency motion can help expedite the normal process for modification of custody.
You may be wondering, what must be contained in this emergency motion? What is the burden of proof to obtain emergency custody? In order to obtain emergency custody in Indiana, you must establish two separate things. First, you must show that a modification of custody is in the child’s best interests.1 Second, you must establish there has been a substantial change in circumstances to one of the following factors: “(1) The age and sex of the child; (2) the wishes of the parents; (3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age; (4) the interaction and interrelationship of the child with: (A) the child’s parents; (B) the child’s siblings; and (C) any other person who may significantly affect the child’s best interest; (5) the child’s adjustment to the child’s: (A) home; (B) school; and (C) community; (6)the mental and physical health of all individuals involved; (7) evidence of a pattern of domestic or family violence by either parent.”2
Depending on the circumstances, if the court determines that an emergency exists, and you are able to prove that a modification would be in the best interests of the child(ren) and there has been a substantial change to one of the above factors, the court may grant your motion ex parte.3 What this means is that the court could grant your petition on a temporary basis before proper notice is served on the opposing party, setting an emergency hearing. In most cases, the court will set a full hearing in the immediate future to allow the other side an opportunity to present their case. For example, in one Indiana case, a Father’s petition for emergency custody was granted the same day, before the mother was properly served, because the children were living in foster care.4 The court determined that the children living in foster care was an emergency needing immediate action. The court subsequently set a hearing three weeks later.
Whether you are able to file for emergency custody will depend on the facts and circumstances of your particular matter; rarely this can be obtained on an emergency, ex parte basis. Most of the time the court will set an emergency hearing and require your counsel to get personal service on the other parent. Remember, the above information is general in nature, and the main takeaway is that you have an option to seek emergency custody if need be. Child custody modifications can be a trying time for individuals. These types of proceedings are extremely fact sensitive, leading to confusion among many litigants and attorneys. Not to mention, these are very personal and emotional matters for people. When issues become so serious that modification of custody may be necessary, it may be helpful to seek the assistance of an attorney to help navigate through the process. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana and understand the significance of custody modification and planning for the same. This blog post is written by Ciyou & Dixon, P.C. advocates and is not intended as specific legal advice or a solicitation for services. It is an advertisement.
- Ind. Code section 31-17-2-21
- Ind. Code section 31-17-2-8
- This blog is not advocating an ex parte modification of custody. This is rare and has very technical rules that counsel and the party must follow to obtain same. This is beyond the scope of this blog and is a rare remedy.
- In re Paternity of R.A.F., 766 N.E.2d 718 (Ind. Ct. App. 2002).