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Legal Information: New York

Parental Kidnapping

November 9, 2020

Can I get temporary emergency custody as part of a custody petition?

If New York is your child’s home state, then you can apply for temporary custody in New York as part of a custody petition. If you are hoping to get an ex parte temporary custody order, which is issued without the other parent being notified ahead of time, judges will usually only grant temporary ex parte custody orders in extreme situations. You may need to prove to the judge that there is immediate and present danger of abuse and it is necessary to protect you or your children or that there are other urgent circumstances.

If New York is not your child’s home state, you may file for temporary emergency custody (jurisdiction) in a New York court as long as your child is currently living in the state and it is necessary in an emergency to protect the child, a sibling, or parent of the child.1 If there is no custody order from another state, then a New York judge could issue a temporary emergency custody order that could stay in effect until the home state issues an order that says otherwise. After six months, if the child continues to live in New York and no other custody petition is filed in another state, then the temporary emergency order could become a final order.1 If there is already a custody order from another state, the New York temporary emergency custody order will state a time period that the order is in effect with the purpose of allowing the victim to go back to the court that issued the original order to try to modify it. However, if the New York judge believes that the child is in immediate (imminent) risk of harm, the temporary emergency order can remain in effect until the original state’s court takes steps to assure the protection of the child. The New York judge is supposed to communicate with the judge in the original state to decide how to best protect the safety of the parties and the child and to determine a period for how long the temporary order will last.2

We recommend that you ask a lawyer for advice in this situation. For information on legal resources in New York, please consult our NY Finding a Lawyer.

1 NY Domestic Relations Law § 76-c(1), (2)
2 NY Domestic Relations Law § 76-c(3), (4)