NC Fathers Rights

What Is a NC ex-parte emergency child custody order and hearing?

What is a ex-parte emergency child custody order and hearing in NC?Before we discuss what a NC ex-parte emergency child custody order and hearing is, please keep in mind that the author of this note is NOT a NC lawyer, and NC Fathers is NOT a law firm. This note is NOT legal advise and you should only use it for educational purposes. If you are considering filing a ex-parte, or you have had one filed against you, you need to immediately hire a licensed NC family law attorney for expert legal advise. NC Fathers is an organization of NC non-custodial families who are lobbying legislators for a more fair family law system and for equally shared parenting for both fit parents after a divorce or relationship breakdown. Please join our Facebook page to get involved. Our organization is open to ALL non-custodial parents regardless of gender and we strongly encourage extended family members to join our organization as well.

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In NC, an ex-parte order as it relates to child custody is simply a order a Judge gives for emergency reasons to a litigant (parent) based solely on their testimony or lawyer’s fact giving to the Judge. In an ex-parte, only one parent’s reasoning for the order is heard. Typically, a lawyer will request that a Judge give him/her some time in chambers one on one and will present the case. If the Judge signs the order, law enforcement will immediately be dispatched to where the child is, the child will be removed, and given to the other parent who filed the ex-parte.

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Why do we have ex-parte orders?

Ex-parte’s are USUALLY given on death, substantial injury, and sexual assault cases that require immediate attention that DSS can not give. Sometimes they will be given on extreme cases where there is not an issue with immediate death, injury, and sexual assault issues.

The burden to get an ex-parte is VERY VERY VERY EXCEPTIONALLY high and many Judges hate issuing them because it is extremely prejudicial to the parent for which the ex-parte is sought on because they are not heard in the case. However, most recognize that there are good reasons for ex-parte hearings. If there is not substantial evidence presented to a Judge when a lawyer requests the ex-parte, a Judge will likely ask the lawyer to contact NC DSS or law enforcement to go that route.

If a ex-parte is granted, there is by law a hearing ten days later where the NC Judge will hear BOTH sides and decide if the ex-parte should stay in effect or not. If during the ten day hearing a Judge maintains the ex-parte then child custody is reversed until/if another petition is filed. A custodial parent can also file a ex-parte order to stop court ordered visitations.

Some things to consider and why NC Judges further dislike ex-parte’s in our opinion

Aside from them being highly prejudicial, Judge’s know that if they sign an order, law enforcement will forcibly remove a child from another parent who may or MAY NOT have done anything hence why they usually always want some type of 3rd party professional (but not always) documentation at the time of the order.

Some Judge’s feel compelled to sign an ex-parte because they feel like if they don’t give an order, and a child gets hurt or dies, it is 100% on their shoulders. Yet, if they do and it turns out ten days later the information given to them at the time of the request for the order is not true, they caused great trauma to a child and parent for no reason and we feel like many times a Judge will hold the lawyer and litigant who sought the ex-parte accountable and not be happy with them.

Again, in our opinion, if you are considering filing a NC ex-parte against another parent, you should hire a lawyer because he/she is the only one that can file and talk to a Judge. And, they should only be done for legitimate emergency child custody actions that have a risk for immediate death, great injury, or sexual assault on a child. If an ex-parte is NOT granted, a parent still has the option to make a DSS complaint or file a normal show cause petition to have custody reversed or to stop ordered visitation. Additionally, law enforcement can be utilized in many cases.

Why ex-parte orders are highly prejudicial

If a Judge issues a NC ex-parte order, you only have 10 days to hire a lawyer and prepare your case. Of course a lawyer can request a continuance that can extend the mandatory 10 day hearing, but that is assuming that you have the ability to even hire a lawyer. If you can not hire a lawyer, it is best to go to the hearing yourself and plead your matter because if you do not show up the ex-parte will stay in effect permanently until you can file to reverse it at a later date.

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March 22, 2014 Posted by | Uncategorized | 6 Comments