Emergency Petitions for Custody in Virginia

Emergency Petitions for Custody in Virginia

When I was a kid, I took the whole “boy who cried wolf” story a little too seriously. I vividly remember being told about 911, and how it was only to be used in emergencies. I vaguely remember a terrible impression that bad things happened to people who called 911 when it wasn’t an emergency.

As an adult, I have a really difficult time, even now, classifying things as an emergency. I’m not sure if I’m scared I’ll appear melodramatic, or if someone else’s assessment of what constitutes an emergency might be different, but I really struggle with that word.

Emergency situations come up all the time in custody and visitation and, most of the time, I find myself thinking that these people toss the word around without any scruples.

The law is pretty clear. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Virginia Code, an emergency custody situation is one where the child is in physical danger.

Virginia Code 20-146.15 (which provides essentially the same terms as the UCCJEA) provides specifically:

“A court of this Commonwealth has temporary emergency jurisdiction if the child is present in this Commonwealth and the child has been abandoned or if it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to mistreatment or abuse or placed in reasonable apprehension of mistreatment or abuse or there is reasonable apprehension that such person is threatened with mistreatment or abuse.”

We see people attempt to get emergency hearings for all sorts of reasons, though, and often not having at all to do with the physical safety of the child. Certain issues – like school enrollment – do sometimes qualify for emergency hearings. I’ve heard several judges indicate that they believe school enrollment to be an emergency issue, and it is one issue that they often grant expedited hearings to determine.

What happens if my child’s father files for an emergency or expedited hearing?

It really all depends on the court and the issue(s) involved.

Some courts are more liberal about granting emergency hearings than others. If you really do have a safety issue involved, almost all courts will grant an emergency hearing.

Problem is, your child’s father can exaggerate – at least temporarily – in order to have an emergency hearing granted. In most cases, like school enrollment or some of the less critical issues where a court has decided to exercise its emergency jurisdiction power, there will just be an expedited hearing – where you’ll still receive notice and have an opportunity to appear and plead your case.

In other cases, though, and especially recently, we’ve found that the judges interpret “emergency” more broadly than the statute and the UCCJEA tend to allow. Specifically, with respect to relocations, we’ve found that judges are pretty willing to entertain emergency motions (even without evidence that the child is actually in any physical danger related to that relocation) – sometimes even ex parte.

What does it mean to hear a motion ex parte?

Ex parte means “in the interests of only one party”, and in practice it means that the judge can have a hearing with only one side present. This isn’t a general power of the court, it’s something that the judge can invoke in an emergency case only, and it’s supposed to only be used where the child is in physical danger.

But we’ve seen it happen simply over the fact that the child’s mother moved the children to a different state.

In the most recent case I saw where this happened (which is what compelled me to write this article), the father showed up in court on a Friday, made an emergency motion, and mom was ordered to return the children to Virginia. The judge notified her of the decision by calling and leaving a voicemail on her phone. Scary, right?

Because no one was there representing mom – she wasn’t served or given an opportunity to present her case to the judge – we don’t know what dad told the judge. It’s probably pretty likely that he seriously misrepresented the facts, and it’s entirely possible that the judge believes these children to be in actual physical danger. In this case, though, that’s not accurate; mom only left because dad kicked her out, and she moved back home with her parents because she had nowhere else to go. She shared address and other information, and facilitated visitation and Skype calls between the children and dad in the interim. It’s hard to say how dad represented this case to the judge in the courtroom, except, of course, that it appears as though the children have been ordered to return to the Commonwealth.

What happens AFTER an emergency order is entered?

The important thing is that emergency orders are always temporary – which is probably why judges are so liberal with them. It can be corrected later; though, in this case, not without considerable disruption, expense, and distress to the mother.

What SHOULD she have done? Well, it’s always better to come up with a comprehensive plan with a licensed and experienced Virginia divorce and custody attorney BEFORE you leave the state. It’s not a perfect solution; we can never predict the other side, but it’s a good idea to at least have a plan in place before you make any rash decisions.

Your child’s father may not be as hesitant to call something an emergency as you or I would be, and it’s a good idea to be prepared – and, maybe, even to have a backup plan – in case something like this happens.

The law is pretty clear, but it may be difficult to get your position across if (1) an ex parte hearing is granted, or (2) a hearing is expedited to the point that you have trouble obtaining representation before the hearing is scheduled. (Yes, that happens, too! I’ve had people show up to our office with a notice that they were just served with telling them that they have a hearing in the next couple of days!)

In other cases? We sometimes can’t even get in to court for six or more months! It’s really highly dependent on the situation and the facts involved – and sometimes, I am sorry to say, on the misrepresentation of the facts involved.

It’s scary, but the best thing you can do is work with an experienced attorney who can help you navigate this minefield.
For more information or to discuss your situation one on one with one of our experienced custody attorneys, give our office a call at 757-425-5200.

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