Can I get temporary emergency custody before or after moving with my child?
If you are applying in a state where you and the child have recently arrived:
Under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can apply for temporary emergency custody in a state that is not the “home state” of the child if:
- the child is present in the state and either:
- the child has been abandoned; or
- 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.1
Note: Every U.S. state follows the UCCJEA except for Massachusetts (and Puerto Rico).2 If you live in Massachusetts or Puerto Rico, which follow a different law called the Uniform Child Custody Jurisdiction Act (UCCJA), emergency custody may only be granted if the child has been abandoned or the child (not a parent or sibling) is subjected to or threatened with mistreatment or abuse.3
We strongly recommend that you talk to a lawyer who specializes in domestic violence and custody issues about your situation before leaving the state if at all possible.
If you are granted emergency custody, the order would likely be what is called an “ex parte” order since the other parent would not be present in court. Ex parte orders are generally good for a short period of time until a return court date where both parents are present in court before the judge. Note: If a custody order already exists in State A and you are getting an emergency custody order in State B, the emergency order may generally only last for enough time to allow you to go back to State A and change that existing order.4
If you are applying in the child’s “home state”:
You may request temporary custody (or emergency custody) if you are filing for custody in the child’s “home state,” which is generally the state where the child has lived for the past 6 months consecutively (in a row). Depending on your state, you may be able to request temporary emergency custody as part of a regular custody petition or there may be additional forms you need to file. You may or may not have to prove that the child is in danger in order to get emergency custody. However, you still may not be able to take your child out of the state even if you have temporary custody - it may depend on what the order says. If you know you are planning to leave the state, you might want to ask the judge to include permission for you to leave the state in the custody order. It is up to the judge to decide.
1 UCCJEA § 204(a)
2 Current as of April 2016; See Uniform Laws Commission for updates
3 UCCJA § 3(a)(3)
4 UCCJEA § 204(c)