Family disputes can be emotionally exhausting, and when children are involved, things can quickly become more complicated. The safety and well-being of children are always a top priority in every state, including Louisiana. The Louisiana family laws provide several options for a parent or legal guardian to file for child custody. However, in some urgent situations, such as when there is a risk of danger to the child, an ex parte emergency custody is necessary. In this blog post, we will discuss what ex parte emergency custody is in Louisiana, its requirements, and how to file for it.
What is Ex Parte Emergency Custody?
Ex Parte Emergency Custody in Louisiana refers to a legal motion filed in court by a parent, family member, or legal guardian to request immediate custody of a child. This type of custody is granted without the other parent or guardian present. The term ex parte means "by one party" in Latin. This means that the motion is presented to the judge without the other party being notified or present in court. Ex parte custody is typically intended for urgent situations where the child's safety is at risk, such as physical or sexual abuse, drug addiction, neglect, or abandonment, and where ordinary notice of due process to the opposing party would likely result in additional harm to the child (such as retaliation or risk of the opposing party running away with the child to try to avoid process).
Requirements for Ex Parte Emergency Custody
To obtain ex parte emergency custody in Louisiana, the petitioner, or the person making the motion, must meet specific requirements:
- The petitioner must prove that there is an immediate threat to the child's health, safety, or welfare. This can be done by providing evidence of abuse, neglect, or abandonment.
- The petitioner must show that there is a risk of irreparable harm to the child if they remain in the current custody arrangement.
- The petitioner must demonstrate that there is no other way to protect the child from harm other than granting ex parte custody.
The specific language of the statute is much simpler, but requires the complexity provided above in the court’s analysis. Specifically, it states that the requesting party must clearly show in their petition and affidavit that “immediate and irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.” Because there is a powerful public interest in the protection and safety of vulnerable children, which directly competes with every individual’s Constitutional right to be free from judicial interference of their freedoms without an opportunity to be heard by a court, Louisiana judges are very reluctant to grant Ex Parte Emergency Custody petitions without a clear and convincing basis for doing so.
How to File for Ex Parte Emergency Custody?
If you are considering filing for ex parte emergency custody of your child in Louisiana, it is advisable to seek legal counsel for guidance and representation. You may file a petition for ex parte custody with the family court clerk in the parish where the child resides. The petition should include detailed information about the emergency situations, such as the nature of the threat, the identity of the abuser or perpetrator, and the evidence of harm or danger to the child either referred to directly in the pleadings or attached as exhibits. After filing the petition, the judge may grant a temporary restraining order (TRO) to remove the child from the dangerous situation and appoint a temporary custodian until a court hearing can be held. The court may also grant a Civil Warrant directed to local law enforcement authorizing them to assist in the immediate procurement of the child at risk and instructions to them to turn the child over to the petitioner or other custodian.
What Happens After Ex Parte Emergency Custody is Granted?
Although many different courts have small-but-important deviations from each other, there are some scheduling principles that CANNOT be different than the governing statutes. For example, in the event that the emergency custody order is granted, the other parent may be prohibited from any visitation at all or reduced to supervised visitation until the initial hearing. In the event that an emergency ex parte order is denied, the court must allocate custody between the parents until a hearing can be held and evidence presented.
No matter what, once the ex parte emergency custody is granted or denied, a court hearing must be scheduled no later than 30 days by law to allow both parties to present evidence as to why the court was right or wrong in granting or denying the emergency order. At the hearing, both parties will have the opportunity to present their evidence and argument to try to “flip” the judge’s order, but only on the interim basis (which means before the final trial). Then, and at the 30-day hearing, a trial date will be set to determine continuing custody. It is important to note that ex parte custody is a temporary solution to urgent situations and not intended to replace long-term custody arrangements.
Conclusion
Ex Parte Emergency Custody is a legal motion that provides an effective remedy for urgent situations where a child's safety is at risk. If you believe your child is in danger, it is essential to seek legal counsel and file for ex parte custody as soon as possible. It's also important to provide sufficient evidence to support your case and to be prepared for the court hearing. With the help of an experienced family law attorney, you can increase your chances of success and ensure that your child's safety and well-being are protected.
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