The Precarious Nature of the Emergency Custody Hearing: A Closer Look
                                                                                                                                                            

 What’s an “emergency”?

There are many serious circumstances which may arise that would justify pursuing an emergency temporary change of child custody. Where the threat of harm is great enough, these emergency orders are sometimes undertaken during “ex-parte” proceedings, which means the other party isn’t present for the hearing.

Emergency relief in these scenarios is intended to protect children who are subjected to or are otherwise threatened with serious harm or child abandonment.  Examples of circumstances which may necessitate an emergency change may include:

• Allegations of physical or sexual abuse.
• Threats of same.
• Abandonment of the children.
• Some measure of custody was awarded to a convicted sex offender.
• Allegations of substance abuse which put the children in danger.

As the outcomes of emergency hearings vary from county-to-county, the consideration as to what rises to the level off exigent circumstances cannot be captured in one easy explanation.[1] There is no clear definition available under Maryland Rule 1-351 governing the Maryland Rules of Procedure for Ex Parte Applications, and the standards applied are appropriately determined on a case-by-case basis.[2]

Generally, the court requires that the motion only be filed under circumstances that require immediate intervention. Emergency relief will be denied unless there is a sufficient showing that there is an imminent risk of substantial and immediate harm or harassment to a party or minor child or that there are circumstances which the Court believes require immediate intervention. The view that an existing “emergency” requires a showing that there is some sort of “blood on the floor” is still widely favored and a difficult burden to overcome.

The following are not considered emergencies (though determinations are made on a case-by-case basis)

• Changes of custody in order to enroll children in school.
• Unsubstantiated threats to remove children from the jurisdiction.
• Financial issues.
• Visitation issues.
• Contempt.

Practice Point: In the event the Court does not find an emergency, you may request, and the court may grant instead, an expedited Pendente Lite (temporary) hearing to determine custody or visitation. If the judge presiding over your emergency hearing is unable to act upon your request additional pleadings should be filed with the court.

What must be filed?

If faced with an emergency situation, you can file a petition for the emergency temporary change to an existing court order.  It is important to remember that in order for the court to consider your emergency petition, the case must be open and an issue must be pending. If the case is closed and there are no pending matters, the court will not hear a petition for emergency relief until the status of the case has been updated.

What about when your client’s “emergency” arises before any order is in place? In that case the complaining parent must also file a Motion for Custody or other pleading placing custody at issue (e.g., Complaint for Absolute Divorce) at the same time the emergency motion is submitted for consideration.

Satisfying the Notice Factor:

Another factor contributing to the precarious nature of the emergency motion is it’s notice requirement. There is no mistaking the specificity and intent of the Maryland Rules on this point of practice.[3] Maryland Rules of Procedure at Chapter 300, Amended Rule 1-351(b) lays out the requirements a party must satisfy as to notice and reasonable efforts to contact the opposing party in a case.

“(b) the moving party has certified in writing that all parties who will be affected have been given notice of the time and place of presentation of the application to the court or that specified efforts commensurate with the circumstances have been made to give notice.”

The rules are clear that where the Court is unable to find sufficient notice, no relief can be granted to the moving party. Notice must be given within 24 hours of the requested haring and must state the proposed time, date and location where the hearing will take place. In Baltimore County, emergency hearings are only heard on Mondays, Wednesdays and Fridays at 1:30pm. The Baltimore City Circuit Court webpage goes a step further in spelling out the moving parties’ responsibility to give notice, posting in bold-face font type that “[i]t is counsel’s responsibility to contact opposing party or counsel for the opposing party…the proposed date and time…”

What becomes difficult to determine in actual practice, is what the court will consider as a “reasonable” effort on the part of counsel to give the other side notice and an opportunity to be heard on the moving parties’ pleading. It is difficult to propose to an aggrieved parent, the practicality of attempting delivery by certified mail, and often times the situations present themselves with a set of factors which make contact with the Sherriff’s Office or a private process server a pointless pursuit.  So what then?

The answer seems to be, simply do everything within your power, legally and ethically, to make the opposing party aware off your intent and actions in the case.  If you can get the other side to show up at the date and time of your hearing, no matter the methods used, you’re halfway to victory.

Author: Sahmra A. Stevenson, Esq is family law practitioner at S.A. Stevenson Law Offices, LLC. Phone: (301)795-2728;  Email: [email protected];  Twitter: @SAS_Law; IG: SahmraStevensonEsq;  www.saslawoffices.com]

[1] Online resources for the state courts in Vermont refer to an emergency as being “[a]ny relief sought for which, through circumstances beyond the control of the applicant, there is not enough time to give the notice required by the Rules.”

[2] Online resources for Pennsylvania state courts opine that “[a] motion for expedited hearing or an emergency motion is filed whenever movants, in order to avoid irreparable harm, need the requested relief in less time than is normally required by the Court to receive and consider a response. This motion must specify the reason(s) why expedited consideration is necessary and the motion for which you are seeking expedited consideration must be attached as an Exhibit.”

[3] See, Maryland Rules of Civil Procedure 351(b)