Permanency and stability are keys for children; Courts are mindful of this in considering all requests for custody modification in a child’s best interests. For this reasons, Indiana trial courts and attorneys are reluctant to entertain “emergency” motions for child custody modification in all but extraordinary situations because this is incongruous with taking the time to allow the attorneys to develop the evidence and present the case.
However, there are four somewhat common situations where a trial court may set an emergency hearing and modify custody, if the right evidence is present: (1) criminal arrest or conviction; (2) drug or alcohol overdose; (3) suicide attempt; and/or (4) incapacity. These are addressed in this blog post.
A criminal arrest or conviction may be a basis for an emergency custody modification if it impacts the children’s best interests. This is unlikely to be the case where a custodial parent is charged with a crime unrelated to his or her impact to care for the children, such as may be the case for writing a bad check.
On the other hand, an arrest or conviction, such as for theft where the Children are present during the crime, may indicate the children’s best interests are not being served by the parent’s primary care or their physical or psychological safety may be at risk.
A second scenario is where a parent has a drug or alcohol overdose, even if this is an accidental overdose. Where the children are in that parent’s custody, it is more likely to significantly weigh into the best interest analysis as this may have caused any range of concerns, from what the children may have observed of the parent in distress to his or her endangerment of the children by the overdose.
Closely related and the third basis is an actual suicide attempt. In this case, the parent’s mental health is at issue and this is almost always linked to the ability to be a caregiver for the children. These are clearer cases for emergency filings for custody because of the limited or diminished capacity of the custodial parent.
A fourth and final category is a parent who has an incapacity due to disease or accident, such as a parent who is involved in a severe car accident. While this parent may ordinarily meet the children’s best interests and be the preferred parent under the evidence as it existed at the time of the last order, this is not the case in most circumstances with the occurrence of such tragedies.
This blog post was written by attorneys at Dixon & Moseley, P.C. We hope it helps you understand some of the specific circumstances that may be proper for an emergency custody modification filing. This blog is written for general informational purposes only and is not legal advice or to be used or relied upon in a specific situation. It is an advertisement.
