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 »

  1. Question: Why is it that ONLY a Lawyer can talk to a Judge???

    Quote: ” 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 ” UN-Quote..

    NONE of the above so called RISK were involved? in our case. I only found out recently that my wife has filed for such an ” ex-parte emergency child custody order “.

    I was NEVER notified, had to find out from a school principal that such a thing was put in effect after I put an innocent question to him in regards to our school pictures of our child. I called the Monroe court to find out WHEN such a thing was filed and it turned out to be granted sometime in January of this year (2014). It is now April 2nd…
    They DO have my current address so why was I not informed?! I heard papers were send to an old address.

    How can I find out WHY it was granted on grounds or WHAT?

    I know that my wife’s Lawyer has told her to do things before that ARE of a criminal nature and they have been able to get away with it merely because I do not have the resources to pay for a Lawyer and file a Criminal Case against her/them. It is hurting our children as they are not allowed to freely call or see me (Skype) or send me mail. Everything has to go thru my wife. She must be happy as she is a major control freak (no disrespect intended) and she seems to have pleasure hurting me and eventually our children. Why is it that Judges (and Lawyers alike) let this happen, that false and made up claims, say it out loud Lies, are being aloud to be used not ever once checking facts, and hear the other sides story / defense?

    Like

    Comment by A wronged and Loving dad | April 2, 2014 | Reply

    • go to your local courthouse and you can look up the case number by entering your name (or hers) into the court computer. the clerk of the court will give you the court file so you can read (and photocopy) the “emergency” filing in which your children have been hijacked.
      I would also inquire and see if your county courthouse has a recording of the hearing. many counties in nc record the hearing and you can get a copy of it on CD for up to three (3) years after the hearing.
      the person filing the papers is required to add your name and address.
      the mother and her attorney could have “accidentally” used an old or incorrect address.
      judges have to act on what they are told “under oath” and in sworn legal documents.
      unfortunately, there doesn’t have to be a shred of truth to the matter.
      the system and law is set up for people who actually have REAL EMERGENCIES for the safety of children.
      the sleazy lawyers know exactly what “information” is necessary to receive a favorable ruling and they do it for cash.
      the judge issues “temporary orders”……..which have a very convenient way of becoming PERMANENT orders.
      you need to get your hands on the case file ASAP and get a photocopy and audio copy of the hearing.
      you don’t have to have a lawyer but try to get one if you can.
      the system is already stacked against the “non-custodial” parent and it is a very sleazy and slippery slope.

      Like

      Comment by Navin R. Johnson | April 3, 2014 | Reply

    • You and I are in similar situations except we were all living in Maryland. I found out my ex-husband took the kids to NC by my sons teacher. I was never allowed to present any evidence to the judge and the judge postponed all of our hearings till the six month mark when the children became residents of NC. This went on for over a year. Never got in front of the judge and forced to go the mediation. I only get my children half of every holiday that they are out of school and two weeks in the summer. This should not be allowed to happen!

      Like

      Comment by Sandra | March 25, 2015 | Reply

  2. I will tell you what an ex parte order is in North Carolina, in the family courts we know that two parents want to win custody and therefore each need the other person to be the most horrible person in the world. From this, manufactured claims of abuse and all other kinds of allegations are alleged because it get’s swift attention and the perfect tool to make the other parent start spending money on an attorney to defend against the allegations so that she / he has no money to hire a family courts attorney.

    Only an allegation is needed, no proof, no witnesses, nothing and the Sheriff comes and snatches the child out of your hands and you are unable to see the child again. When given, and Judges in NC always give them on the “better to be safe than sorry principle”, a restraining order is also given in these cases as well and then you don’t see your children for a year. Men typically lose jobs and reputation and the entire paternal family loses access to a loved one. Then in court, because the civil courts operate under “preponderance of the evidence” a Judge can find fault with you as long as he/she THINKS you did it and has no evidence that you did anything. From there you lose the custody battle and any likelihood of a meaningful relationship with your child.

    It’s terrorism by false allegation and nobody does anything about ex parte terrorism because it makes the lawyers rich. And the lawyers association keep Judges in power.

    Like

    Comment by LP | August 7, 2015 | Reply

  3. I am interested in what information you can give me on your organization, I live in ar but my brother resides in nc his wife had him arrested on false charges. She cut him with a knife while he was lying in bed and called the police and said that he cut himself and had her in s a choke hold. He has two step children and a one year old between them. She had her 12 year old daughter lie to the police, the other children’s father is willing to testify for my brother and help in any way possible and has information that could help. We are going to try and get him to convince the younger son in telling the truth to help with this but I need and and all info that could help me with this so I can know what to do as to your laws are different from ours! Any information you can give me will b greatly appreciated!

    Like

    Comment by Bridget clemens | June 12, 2016 | Reply

    • An ex-parte in NC simply means that any party can petition the courts where only their side is heard, the judge will only hear one side. If the judge declares there is an emergency situation, then she/he will inform deputies to go get the child from the other parent immediately. But, there has to be a 10 hearing after the ex-parte is given to allow the other side to be heard before a judge. It is VERY advisable to have a lawyer when attempting to get this type of order or in defense.

      The problem many people have is that it cost $5000 to get a lawyer to help, so if you don’t have the money you won’t have a lawyer and the ex-parte will likely stand not because of merit but because of a lack of legal help.

      Like

      Comment by stompkinsnc | June 14, 2016 | Reply


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