Emergency Custody
Divorce and Family Law
This page is designed to help you better understand the basics of emergency custody and an emergency custody order (eco), how to obtain an emergency custody order, when can a previous custody order be modified, and how an attorney can help in an emergency custody situation.
Emergency custody is a very serious thing and can be important in certain circumstances involving children or a minor. It is sometimes necessary to obtain emergency custody, but there is a process to go about in obtaining emergency custody. A person should always be aware of the situation they are involved in and whether or not they should be doing what they are doing.
Note: Just as with any other legal situation, if an individual is seeking out emergency custody of a child or emergency custody has been enacted, that individual should not hesitate to contact an attorney. It is a smart tactical move and can prevent a person from incriminating themselves or possibly getting themselves into trouble. This page details the specifics regarding the law of emergency custody in the state of Ohio, and can vary from state-to-state. This article and its contents are merely for informative purposes and should not be construed as legal advice. For accurate and up-to-date legal advice, an individual should contact an attorney or legal professional.
Understanding Custody/Emergency Custody
What is “custody”?
Merriam-Webster defines custody as “immediate charge and control (as over a ward or a suspect) exercised by a person or an authority;”
Emergency custody is a more narrow and well-defined version of basic custody. It is best defined as: “Emergency custody of children is often sought if one parent becomes abusive and presents imminent harm or threat to the child. Other instances include child abandonment or parental substance abuse that puts the child in danger.”
Emergency Custody in the state of Ohio is covered under § 3127.18 of the Ohio Revised Code. There are four subsections of § 3127.18. Each of these subsections covers a different portion of emergency custody.
Subsection (A) states:
“(A) A court of this state has temporary emergency jurisdiction if a child is present in this state and either of the following applies:
(1) The child has been abandoned.
(2) It is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”
Breaking It Down: In situations where a child has been abandoned or a child is in danger of being abused, neglected, mistreated or seriously harmed, a court can grant temporary emergency custody to help protect that child’s well-being.
Subsection (B) states:
“(B) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections 3127.15 to 3127.17 of the Revised Code or a similar statute of another state, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 3127.15 to 3127.17 of the Revised Code or a similar statute of another state. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 3127.15 to 3127.17 of the Revised Code or a similar statute of another state, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.”
Breaking It Down: If an emergency custody hearing is held, and there has been no previous custody determination made by an appropriate court, the emergency custody determination will be upheld until a new custody determination is handed down by an appropriate court. If after an emergency custody determination is made, a new custody determination is not handed down, the emergency custody determination becomes permanent. The state in which the emergency custody determination was made becomes the home state of the child involved.
Subsection (C) states:
“(C) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 3127.15 to 3127.17 of the Revised Code or a similar statute of another state, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 3127.15 to 3127.17 of the Revised Code or a similar statute of another state. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or until the period expires.”
Breaking It Down: Once an emergency custody determination has been made, if there is an individual seeking a new custody determination that would overrule the emergency determination, the court must give a specified, reasonable amount of time for that individual to obtain a new custody order. The emergency custody determination remains in effect throughout the time period until a new custody order has been given by an appropriate court or state.
Subsection (D) states:
“(D) A court of this state that has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of a state having jurisdiction under sections 3127.15 to 3127.17 of the Revised Code or a similar statute of another state, shall immediately communicate with the other court. A court of this state that is exercising jurisdiction pursuant to sections 3127.15 to 3127.17 of the Revised Code, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of another state under a statute similar to this section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”
Breaking It Down: If an emergency custody determination is made while a normal custody determination is ongoing, the two courts must communicate with each other about the status of both the normal custody determination and the emergency custody determination. The primary focus of the emergency custody determination and decision should be to protect the safety of not only the child, but the parties involved and determine how long the emergency custody determination will last.
Note: As discussed in the Subsections above, § 3127.15 (a court’s jurisdiction for custody review) and § 3127.17 (modification of an out-of-state custody decision) are covered in more detail further down in the webpage.
What Is An Emergency Custody Order (ECO)?
An Emergency Custody Order is an order granted by the court, giving a parent or guardian temporary custody over a child until a full custody hearing can be ordered. An ECO is typically requested in a situation where a child is at risk of neglect, abuse, or serious harm by another parent or guardian that they are currently living with.
There is a process that an individual must go through in securing an Emergency Custody Order. Any individual seeking to gain an Emergency Custody Order should consult with an attorney who can help them with the necessary paperwork and request an Emergency Custody Order from the courts.
Does the Court Have the Jurisdiction to Grant an ECO?
A court’s jurisdiction in an emergency custody determination is covered by Ohio Revised Code § 3127.15.
Ohio Revised Code § 3127.15 states:
“(A) Except as otherwise provided in section 3127.18 of the Revised Code, a court of this state has jurisdiction to make an initial determination in a child custody proceeding only if one of the following applies:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
(2) A court of another state does not have jurisdiction under division (A)(1) of this section or a court of the home state of the child has declined to exercise jurisdiction on the basis that this state is the more appropriate forum under section 3127.21 or 3127.22 of the Revised Code, or a similar statute of the other state, and both of the following are the case:
(a) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(3) All courts having jurisdiction under division (A)(1) or (2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 3127.21 or 3127.22 of the Revised Code or a similar statute enacted by another state.
(4) No court of any other state would have jurisdiction under the criteria specified in division (A)(1), (2), or (3) of this section.
(B) Division (A) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(C) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.”
Breaking It Down: Simply put, a state tends to have jurisdiction over an emergency custody determination if it is or recently was the home state of the child, one of the parents has a significant relationship to the state besides physical presence, that particular state has evidence related to the child’s protection or care, or if it is determined that the given state would be the best forum for the emergency custody determination.
When Can A Custody Determination Be Modified?
Custody determinations are often times set out as part of the ruling by a court in an adoption or divorce case. While custody determinations can range from permanent to temporary, in certain circumstances a custody determination can be modified. An emergency custody order is one of the ways in which a custody determination can be modified.
However, if a custody determination has been made outside of the state of Ohio, there are certain requirements and guidelines that a court must meet before the out-of-state custody determination can be modified. These requirements and guidelines are set out in Ohio Revised Code § 3127.17.
Ohio Revised Code § 3127.17 states:
“Except as otherwise provided in section 3127.18 of the Revised Code, a court of this state may not modify a child custody determination made by a court of another state unless the court of this state has jurisdiction to make an initial determination under division (A)(1) or (2) of section 3127.15 of the Revised Code and one of the following applies:
(A) The court of the other state determines that it no longer has exclusive, continuing jurisdiction under section 3127.16 of the Revised Code or a similar statute of the other state or that a court of this state would be a more convenient forum under section 3127.21 of the Revised Code or a similar statute of the other state.
(B) The court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”
Breaking It Down: An out-of-state custody determination can be modified if (a) the previous state no long has exclusive, continuing jurisdiction over the child and the new state would be more convenient; or (b) if the child, child’s parent, or guardian are determined to no longer reside in the previous state.
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