Thinking about filing an Emergency Custody Motions in Ohio?

Published 04/08/16 by Admin

Our office has had several requests from various client’s asking whether we would be willing to file an emergency custody motion on their behalf.

Therefore, I think the most relevant questions are: 1) what is an emergency motion? 2) What does it require?

Emergency custody motions are the procedural way in which one party is given custody of a minor child, that they currently do not have custody of. An Emergency Custody Motion must be supported by a petition, and/or affidavit (sworn statement), and a request for a hearing. An Emergency Custody Motion must be heard by the elected judge, with a decision made after an in -court hearing.

Emergency Custody Motions are considered extraordinary measures. That means, that they are outside of the normal procedures of the court, and therefore, the party wishing to bring such a motion must prove more than what is usually required. An Emergency Custody Motion requires that the party bringing the motion must be able to prove that the child in question is in immediate harm. In fact, the movant, must be able to prove that the harm is so immediate and urgent, that the parties’ cannot wait the customary time, and be heard in the normal procedure of the court.

An emergency custody motion is not appropriate simply when you are very anxious about a custody situation, or when you your child no longer wants to visit with a party they are ordered to. It must be an actual, legitimate emergency, and it must be so severe, that it cannot wait for the next time you are scheduled to be in Court. Additionally, Emergency Custody is not appropriate, simply because you don’t like the decision of your magistrate. Because of the increased evidentiary requirement of an emergency custody motion, it is not unheard of to lose a motion for emergency custody, but to win a custody motion, using the same facts.

Emergency custody motions are governed by one of two statutes.

  1. Ohio Revised Code (ORC) § 3127, is a broad statute, and it refers talks about cases in which at some point a custody determination has been made. In the context of our conversation, it states that the court of appropriate jurisdiction, that is either the domestic or juvenile court, may make any custody decision that it believes is in the best interest of the child in question. This statute also discusses where a custody decision has not yet been made, as in the case of two parents who were never married.
  2. Ohio Revised Code (ORC) §2151.31, authorizes a law enforcement officer to take emergency custody of a child, if the following conditions exist:
    • the child is in immediate danger from the child’s surroundings and that the child’s removal is necessary to prevent immediate or threatened physical or emotional harm.
    • the child has run away from the child’s parents, guardian, or other custodian;
    • the conduct, conditions, or surroundings of the child are endangering the health, welfare, or safety of the child.
    • the child is required to appear in court and there are reasonable grounds to believe that the child will not be brought before the court when required.
    • that the child committed a delinquent act and that taking the child into custody is necessary to protect the public interest and safety.

Therefore, an emergency custody motion made be made under O.R.C. § 3127, or can be made by law enforcement officer under O.R.C. § 2151.31.

Emergency Custody Motions are very fact specific, and require adhering to certain rules of procedure and evidence, and should not be entered into without consultation with an experienced Domestic Relations Attorney.

The attorneys here at Barr, Jones and Associates, have drafted and been involved in many emergency custody motions, and can provide invaluable assistance if you are contemplating filing such a motion.

Feel free to call us at (614) 702-2222, to schedule a free, telephone consultation, to discuss filing an emergency custody motion, or any other domestic question.