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What You Need To Know About Emergency Child Custody Modification

What You Need To Know About Emergency Child Custody Modification

Legal battles or litigation are brought to decide matters between parties in the absence of any other way to resolve a dispute, which when decided, unless appealed, becomes the permanent order of the court. This Order decides all the issue(s) raised in the litigation once and for all1 and the case is then disposed (closed).2 The biggest exception to this rule is in divorce cases where there are minor children. In these cases, the divorce court3 (by its judge) retains jurisdiction over the children and can make physical custody4 decisions (initially or when presented with modification requests) in their best interests until they are emancipated or complete high school. Further, in certain cases, the judge can even order higher education expenses for an adult child to be paid by his/her parents (contribution toward post-secondary education and/or a skilled trade, to name a few).

Thus, while the children are still minors (not in the situation where there is a higher education order being sought and before the court) the court can modify physical custody from one parent to the other if there has been be a substantial change5 in the factors the court can consider and it is in the children’s best interests.6 In some cases, the bases for modification of custody build up over a long period of time. In other cases, some immediate or just-occurring act or omission occurs that may leave the children in harm’s way in the custodial parent’s care. This blog surveys the legal landscape surrounding emergency child custody modification actions. These actions begin by filing a motion in the divorce court seeking emergency modification of custody from one parent to the other.7

What are emergency child custody hearings?

An emergency modification proceeding is exactly what it sounds like and claims to be–a true emergency. Unfortunately, there is no statute in the divorce act defining what constitutes an emergency matter to be entitled to move for an emergency hearing. In most cases, a court is not going to find an emergency petition to be a true emergency and provide an emergency hearing unless the children are in some type of new harmful situation (if the situation seeking an emergency hearing has been going on for a period of time and the non-custodial parent has not acted, then courts are generally less likely to deem such an emergency just because the non-custodial parent decided to act at this random point in time). For this reason, it is key to draft a very detailed emergency modification petition that clearly sets the emergency, so the court, in quickly reviewing the emergency filing, sees the emergency “jump off the proverbial page.”

If upon review, the court sets an emergency hearing, this is not the end of your struggle. Specifically, the problem with emergency custody hearings is most emergencies have convoluted and/or complex fact-patterns that must be fully addressed in the emergency hearing in order to obtain a modification of custody. Unfortunately, Indiana trial court judges have full calendars, and most emergency hearings that get set are afforded a very short amount of court time, such as fifteen minutes to one-hour. Thus, it is of utmost importance to have a strong family law attorney to try to make your case by telling the story of the emergency through testimony and exhibits in an impactful way within the limited amount of time you have. Without this, the emergency matter may be lost on the court and result in a loss (the emergency motion to modify custody is denied). Other than a shortened time to prepare and present evidence, there is typically no other difference between an emergency custody modification hearing and a regularly scheduled custody modification hearing.

What qualifies as an emergency custody matter?

Although this topic was addressed under “What are emergency child custody hearings” to some extent, most litigants benefit from examples. Providing examples can help litigants analyze their case with counsel to determine if the physical custody modification matter they want to file constitutes a true emergency. Some examples of common emergency filings are common sense matters and are comprised of those that fall within these fact patterns:

  • The custodial parent is arrested for a crime that involves violence.
  • The custodial parent is arrested for a crime that demonstrates he or she may not have the mental capacity to act in the children’s best interests.
  • That custodial parent is arrested with the children.
  • A DCS investigation has begun alleging abuse or neglect of the children.

It is probably apparent why these are emergencies. However, skilled domestic advocates understand some judges have different views of where they draw the emergency/non-emergency line and may be able to assist you in any given court to file an emergency on something not even closely related to this list, or which is, at first blush, not an apparent emergency.

This noted, and as discussed above, there is no hard and fast rule to look towards to determine if your case is an emergency if it does not fall into one of the noted areas. Again, if there is some immediate harm to the children or your relationship to the children, it may well be an emergency. This changes case to case and turns on many other factors. For instance, when the COVID-19 outbreak occurred and Governor Holcomb issued stay-at-home orders, a small percentage of custodial parents refused to provide parenting time to the non-custodial parent. This refusal was contingent upon it being too risky for the children, as the exchanges exposed them to other people and potentially COVID-19. This immediately turned every similar case into an emergency and judges across the state grappled with how to handle this matter, as every case was unique, even if COVID-19 was the only source of dispute. How so? What if the non-custodial parent was a front-line health care worker treating COVID-19 patients? Should the custodial parent be allowed to withhold in-person parenting time in the children’s best interests? This is how complex these emergency custody matters were at that time. The key with any emergency custody matter is to retain counsel who is skilled in domestic law and has the resources to handle an emergency matter.

What constitutes an emergency motion?

Fortunately, with a few exceptions, Indiana is a notice pleading state.8 This means that there are no special requirements of any motion that needs to be filed with the court with an emergency motion, in most cases. It should be properly captioned and have the title of the motion reflect the emergency.9 However, the rule of notice pleading, where a parent is free to simply state there has been a substantial change and request a hearing on modification, is insufficient in most emergency modification cases to alert the court as to the nature and scope of the emergency. Thus, the motion should have all the details in the motion that make up and reflect the emergency and demonstrate a risk of harm to the children or impairment of the non-custodial parent relationship.

Further, because these detailed facts may be relied on by the trial court in assessing if this is an emergency, the motion is normally verified (it contains a statement by the parent the facts are true under penalty of perjury) and may have various attachments, such as emails, texts and/or Our Family Wizard communications evidencing the emergency.10 This type of motion drafting and practice is well-known to sophisticated family law attorneys. Ultimately, a properly prepared emergency motion should be a self-contained document that fully informs the judge of the emergency so he or she can assess if the matter is an emergency and allocate sufficient time for the emergency hearing. Skilled counsel will also prepare an order for the court to set the hearing and may well have any such order personally served on the custodial parent by a private process server to ensure the custodial parent has notice of the hearing. Without notice, which is called “good service,” the emergency hearing may be vacated and not occur. The custodial parent must have actual notice of the emergency custody modification hearing. 

What forms do I need to modify child custody in Indiana?

In some counties, they have blank petitions that can be handwritten in by pro se (people representing themselves) to explain to the court why they seek a custody modification. With true emergency custody modification actions, the petition to modify custody on an emergency basis must carefully detail the emergency matter, which is virtually impossible with the blank form provided by the court in a given county. In fact, without legal training, it is effectively impossible for a pro se litigant to set forth the relevant facts and law to make a complete emergency custody modification motion such that the court will act on same. In fact, many seasoned and skilled domestic relations’ attorneys do not handle emergency matters with frequency because they are very disruptive to running a smooth practice and providing proper time for responses to existing clients because emergency hearings may be set by a court without consulting counsel and if he or she has the ability to attend the emergency hearing.

Should a pro se litigant obtain an emergency hearing, he or she also will also have great difficulty presenting an emergency custody modification case because he or she will not know the rules of evidence to properly admit evidence reflecting the emergency. For the most part, emergency custody modification hearings are handled by attorneys. If the matter is not an emergency custody modification request, courts typically provide pro se litigants with some latitude in filing custody modification requests, meaning they will not reject a filing for general failure to conform to norms of motion practice.

What is substantial change in circumstances for custody?

Obviously, any emergency petition for modification of custody hinges on being able to show a substantial change in circumstances related to the children and it is in their best interests that custody be modified. Like many key terms in the divorce act, the term “substantial change in circumstances” is not defined. Indiana’s appellate courts give trial court judges vast discretion to judge the credibility of live witnesses, and while this showing is required, it is an ambiguous term. Clearly, a slight change in the children’s situation, such as a drop in grades, is not a substantial change in circumstances in most cases. On the other hand, if a custodial parent has a serious car accident with the children while under influence of alcohol which places them in this danger, this clearly constitutes a substantial change in circumstances. 

It is the situations that occur in between these example anchor posts that good lawyers spend their time on to develop evidence to give his or her client the best chance of establishing a substantial change in circumstances. All said, Indiana appellate cases provide some insight as to a definition or what this standard means. Specifically, to constitute a substantial change in circumstances, the act(s) or omission(s) must be “so decisive in nature as to make a change in custody necessary for the welfare of the children.”11 So, the takeaway is if the custodial parents put the children’s welfare at risk, this is likely a substantial change. Equally, if the custodial parent interferes in the non-custodial parent’s parenting time to the extent of alienating or distancing the children from the non-custodial parent, this a decisive event as the law presupposes the children will and must have a healthy relationship with both parents. This is what your trial counsel will develop in trying to obtain an emergency custody modification.

What actions qualify for emergency relief?

Throughout this blog, examples have been provided that show different types of emergency custody matters that are ripe for emergency modification filings, namely those where a substantial change in circumstances can be established to have occurred and it is in the children’s best interests that custody be modified to the non-custodial parent. In essence, to qualify, there must be a showing of immediate risk of physical or emotional harm to the children or the non-custodial parent’s relationship with the children. To further elucidate this, five examples of solid emergency modification actions are identified and discussed. 

Perhaps the most egregious example is when a custodial parent leaves the children with the non-custodial parent and then vanishes, stopping all contact with the children. If the parent were to then reappear in the children’s lives, again suddenly, this too would or could be harmful to the children who would not understand what happened. In these cases, courts are often willing to modify physical custody to the non-custodial parent and order no parenting time until the missing parent petitions the court. This allows the court to re-introduce the former custodial parent back into the children’s lives through therapeutic counsel corresponding with parenting time.

While an arrest may not have any significant impact on the children’s best interests if they were not present for the arrest, with many felonies, a custodial parent may have a high bond they cannot afford to post, resulting in them remaining in jail. In these cases, an emergency custody modification action is prudent and likely successful because there is no biological parent to care for the child. A biological parent is preferred over any other person because he or she has a fundamental right to raise the children over any other person, even a caregiver who might offer the children better opportunities.12 In addition, if the children were present during the arrest, this may have significant mental-health implications for the children and/or evidence they were in some risk by being with the custodial parent during the time leading up to and including the arrest.

Sometimes arrest and addiction go together. However, there are many stories of drug-addicted, custodial parents placing the children in harm’s way by virtue of the addiction. The stories take many forms. It may be an impaired parent leaving the children in a freezing or over-heated car while he or she goes into stores to runs errands. The impaired custodial parent may have an auto accident with the children in the car. Whatever form the fact-pattern evidences, if the addicted parent places the children in harm’s way, and this can be established at court by skilled legal counsel, it is likely to support a successful custody modification action. Within these examples, it is also foreseeable that the custodial parent may interfere with the non-custodial parent’s time in conjunction with behaviors that place the children in harm’s way. When coupled together, this makes for an even stronger emergency child custody modification case for the non-custodial parent, as well as forming a basis for modification of legal custody to the formerly non-custodial parent (who makes decisions about the child’s educational training, religious upbringing, and medical care, although this is beyond the scope of this blog).

Although a more rare circumstance, if the children are charged as juvenile delinquents13 while in the care of the custodial parent, such as for acts ranging from battery (such as fighting) to drug possession, this could reflect that the custodial parent is unwilling or unable to properly oversee and rear the children. This is not always the case. However, if a non-custodial parent learns that the children have been charged as juvenile delinquents, he or she should conduct an in-depth investigation of same to determine if the custodial parent is complicit or otherwise failing to meet the children’s needs, and that ultimately, an emergency custody modification is necessary. If this is the case, then an emergency custody modification may be in order. Again, as noted throughout this blog, these are very complex cases to put together and develop evidence for to obtain an emergency custody modification at an emergency hearing. Skilled domestic counsel is required in order to get the best outcome possible.

Physical and mental neglect of the children while in the custodial parent’s care is a common basis for modification of custody. The physical or mental abuse of the children by the custodial parent may be reflective of other issues, such as addiction, or neglect from a new boyfriend or girlfriend while the custodial parent looks away. As with all parenting shortfalls, there are degrees to same. As some indeterminate point where there is a significant impact on the children’s mental or physical health, the matter may support an emergency motion to modify physical custody to the non-custodial parent. These are fact-sensitive matters and hard to develop in the evidence. However, most skilled domestic advocates have handled many emergency custody modification cases based on the custodial parent’s mental or physical neglect or actual abuse of the children or allowing this to occur to the children by a third party.

When to hire an attorney for custody modification?

As analyzed throughout this blog post, it is very difficult for experienced domestic trial attorneys to handle emergency custody modification actions for numerous reasons. The same problems exist with a pro se litigant trying to prepare an emergency motion, file same and, if a hearing is granted, prepare for same. Pro se litigants should be aware that if they try to handle the emergency on their own, they are likely to fail at many junctures and “blow” the chance for an emergency modification of custody. In fact, even though custody is important litigation because children are literally our future, a pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.

Hiring skilled counsel is effectively mandatory as all the following key tasks must be completed to successfully lodge an emergency physical custody modification and have a strong chance of emergency modification:

  • Draft an emergency motion that will get the court to “see” the matter set forth in the motion as an emergency and set an emergency hearing on same.
  • Obtain the relevant evidence for the emergency modification hearing in an admissible format, present it to the court to demonstrate a substantial change in circumstances, showing that modification of physical custody is in the children’s best interests.
  • Be able to properly object and handle the process of an emergency hearing.

Ciyou & Dixon, P.C. attorneys handle emergency custody modification cases of all types across Indiana. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation for legal representation. It is an advertisement.

  1. There is the right to appeal any final order and it is possible any given case continues longer based on reversal by the Indiana Court of Appeals or Indiana Supreme Court.
  2. This is because of legal principles of res judicata and collateral estoppel.
  3. As a general rule, the emergency modification analysis set forth in this blog applies to paternity cases as well.
  4. This blog does not cover legal custody, which is where parent (or both parents) make decision about the children’s medical care, schooling, and religious upbringing.
  5. For divorce cases, the statute that sets forth the substantial change in circumstances is I.C. § 31-14-13-6.
  6. The modification statute that enumerates what a court can consider in emergency custody modification (the same as a non-emergency) is set forth as follows: “The court shall consider all relevant factors, including the following: (1) The age and sex of the child; (2) The wishes of the child's parent or 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 parent or parents; (B) the child's sibling;  and (C) any other person who may significantly affect the child's best interests; (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; (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter; (9) A designation in a power of attorney of: (A) the child's parent; or (B) a person found to be a de facto custodian of the child.” I.C. § 31-17-2-8.
  7. It is possible emergency custody modification could modify physical custody from solely in one parent to joint physical custody. This would be a rare circumstance and is not covered by this blog.
  8. Ind. R. of Trial Proc. § 1, 2.
  9. Ind. R. of Trial Proc. § 10.
  10. Ind. R. of Trial Proc. § 11.
  11. In re Paternity of Winkler, 725 N.E.2d 124, 127 (Ind.Ct.App.2000).
  12. Troxel v. Granville, 530 U.S. 57 (2000).
  13. Juvenile delinquency means the child has committed a criminal act but is a delinquent due to minority. In serious cases, a juvenile may be waived into adult court and tried as an adult.

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Based in Indianapolis and founded in 1995, Dixon & Moseley, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Dixon & Moseley, P.C. will guide you every step of the way. The family law attorneys at Dixon & Moseley, P.C. will help you precisely identify your objectives and the means to reach your desired result. Life is uncertain. Be certain of your counsel. Indianapolis Divorce Attorneys, Dixon & Moseley, P.C.

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