There are very few things as anxiety-inducing as having to go to court, but this is especially true in the case of an emergency motion. In Virginia, one party can file and ask for a hearing to be held on an emergency basis; it is up to the court to either grant or dismiss that request.
You can see why this would be problematic: not only does filing an emergency motion effectively put you in a sort of judicial ‘quick queue,’ putting your case ahead of others who have been waiting for months to have their matters heard, but it places the responding party at a distinct disadvantage. The petitioner – the person filing the motion – is taking action, often with an attorney; the person responding, then, finds out last minute and often with little to no time to retain an attorney, prepare evidence, or gather witnesses. There is certainly not time to conduct discovery or subpoena witnesses or needed records.
Not only that, but – in family law cases especially – emergency motions can be based on blatant lies or overstated allegations based on a desire to manipulate, harass, or abuse the other party. Abusive litigation is incredibly common in family law.
Why would the court grant an emergency motion?
Generally speaking, emergency motions are granted to protect the welfare of a child (or children) in cases where they are being abused or neglected or are at risk of being abused or neglected, usually because of a parent’s diagnosed mental illness or substance abuse related issues.
Anyone can petition for emergency custody; the child does not even have to be a resident of the state. (The Uniform Child Custody Jurisdiction Enforcement Act, or UCCJEA for short, provides that a state where the child is NOT a resident can make a temporary order.)
In a custody and visitation context, everything is down to the best interests of the child.
What can I do if I’ve been served with notice of an emergency child custody hearing?
If you’ve been served with notice of an emergency hearing, you probably don’t have much time to act – which means that your options are severely limited. Not only might you struggle to find an attorney who is available on such short notice, you will also almost certainly find that the amount of time that the attorney has to prepare is insufficient.
This means that you may find yourself without an attorney – or, in essence, having to act as your own attorney.
I think the key in these situations is to stick to the facts as you know them and to bring specific evidence that refutes the allegations contained in the documents you received. If, for example, it is alleged that you have a drug or alcohol addiction, you could use the day or two that you have prior to the hearing to get a full drug test – or, at least, as full as you can get on a walk in basis. Many Lab Corp locations – and even some urgent care facilities – have drug testing capabilities.
Often, being able to refute just one allegation (but, ideally, as many as possible) will help the entire façade to crumble. You likely won’t get the case entirely dismissed, but you want to avoid some of the more severe negative consequences, like your parenting time being restricted, becoming supervised, or eliminated entirely. You also want to – if necessary – petition for the appointment of a Guardian ad litem and advocate for a trial date being set.
The point isn’t, “Oh, there’s nothing to see here,” its more like, “Let’s hash out these issues, but I need time to prepare my case. This is not an emergency; this order would not reflect the best interests of the children, and I have evidence and witnesses I can demonstrate to that effect, given enough time.”
What if I want to file an emergency custody motion against my child’s father?
It’s always a good idea to discuss your allegations with a family law attorney, including what specific proof you have and the ways in which your child’s welfare is being threatened.
The fact that emergency petitions exist is because – in some cases – the threat to a child (or children’s) safety and security is a very real thing. Not every emergency allegation is going to result in an emergency hearing being granted, and the only other alternative (judicially, at least) is to follow the traditional contested custody path, which can take months.
Emergency motions for child custody are extremely serious matters. Whether you are planning on pursuing filing an emergency motion or you’ve been served with notice of an emergency hearing, it’s best if you have legal counsel. Keep in mind, though, that last minute representation is always challenging. Failing that, I’d definitely recommend you do all you can to prepare for the hearing. Consider requesting a copy of our custody book for Virginia moms to get started.
For more information or to schedule a consultation, give our office a call at 757-425-5200.