Arguments over custody can quickly get emotional and cause a lot of stress. A hot custody fight certainly feels like an emergency, and you want to resolve it right now, of course, for your children. Before you take it to court, it’s wise to ask yourself if your custody battle is really an emergency.
What will the judge think?
There is a fast-track process that the court allows when a situation is a true emergency. As a parent, it may always feel like an emergency when it affects your children, but your judge may not agree. When considering whether an issue is a real emergency, parents and their lawyers have to put themselves in the shoes of the judge, which is a tall order for parents caught in the storm of divorce and custody.
Part of our job in representing you is to help guide you through situations like this, with our knowledge of the law and our practical experience of how a judge might respond.
Why wouldn’t the judge agree that it’s an emergency?
Judges hear thousands of custody and visitation disputes a year. You may be going through this for the first time, the judge is not. Their experience has taught them that not everything can be an emergency.
When we look at whether something is an emergency, we have to be guided by what the judge will think after hearing the facts. The opinion of parents is irrelevant. This is shocking to hear for some, but it’s true. The only opinion that matters is that of the judge.
In any litigation, including divorce and custody, the parties need to make sound, reasonable decisions motivated by logic, not emotion. Bringing your emotions to court is likely to alienate the judge, or cause the judge to question every decision you make. You don’t want to appear too emotional to make rational decisions.
In large counties like Pulaski, the emergency process tends to be abused more often. Due to the large population, it can take weeks or even months to get a court date on a docket long enough to handle the issue. It is very tempting for parents and lawyers alike to claim it’s an emergency in order to get in front of a judge faster.
Short Term Victories Have Long Term Consequences
Claiming an emergency may be the fastest way to get to court, and the fastest way to regret it, because it could make the judge very angry. If you and your lawyer decide to allege an emergency for a quick hearing, or even a court order without a hearing, you’d better be sure the judge is going to agree.
Even if you get the order you want, when the judge looks at it later and determines that your issue was not a real emergency, that puts your case in a weakened position in the long run. Your side will lose credibility, and losing credibility will affect all decisions the Court makes throughout the case, until the children are eighteen. Unfortunately, you can’t get a new judge just because you made a bad decision and lost credibility with your current judge.
It’s A Matter Of Rights
Who has rights in this situation? Your side has the right to be heard, and so does the other side. If you do succeed in pushing a judge into making an emergency (ex parte) ruling, he or she will be violating the rights of the other parent. That parent has a right to “notice and opportunity for hearing,” a right which is guaranteed for all citizens in the Constitution. This is a big deal. When a judge makes an emergency determination, the standard must be that the children are in immediate and real danger, not just potential danger.
The Categories Of Custody Issues
There are three categories of domestic-custody-visitation issues.
- Nothing to do about it/petty/waste of time and money to pursue
- Legitimate issue that should be addressed on a normal timeline
- Emergency issue that requires immediate judicial action
Most issues fall in category number one. Litigation is expensive, and time consuming. Judges will not get involved in day to day disputes between the parents. Parents are expected to be adults and get along for the benefit of the kids. In many, many cases, there’s just no realistic legal solution, or the solution is so expensive that the cost doesn’t justify what the likely result will be.
Many issues fall in category number two. These are things like one parent bad-mouthing another, interfering with visitation, not paying bills they are ordered to pay, or not paying child support. It might be something such as a girlfriend or boyfriend spending the night at the home when the children are present, or canceling health insurance. These are significant issues that a Court can and will step into, but they are not emergencies, and do not justify the Court interfering with the other parents’ constitutional rights to get a faster hearing.
Few issues fall in category number three. We have to prove to the judge, or at least be able to convince the judge with a reasonable and good faith argument, that the health, safety and welfare of the children are in real danger now.
What circumstances would the judge agree are emergencies?
We can’t predict with 100% accuracy, but we do have a lot of experience to draw on. Here are some of the things we’ve seen that the judge took seriously:
- A parent using illicit drugs (not marijuana), dealing drugs or cooking drugs in the presence of the minor
- A parent getting arrested, or suspected of physical or sexual abuse
- A parent showing neglect, or not feeding/supervising the child
- DHS investigating based on allegations from a third party
We Can Help
Our attorneys are experts, and are here for you with straight talk, predictable cost, and superior services. We promise to tell you what the most likely outcome is up front, and to be open and transparent in our communications with you until your case is resolved.
Our approach to practicing law is revolutionizing the way law firms deliver legal services. Case evaluations are completely free. Call Lion Legal today at (501) 227-7627 or Email Us to set up a free consultation.