How to File for an Emergency Custody Order in Illinois
If there’s a family emergency and you fear for your child’s health and safety while they’re with the other parent, you should know how to file for an emergency custody order in Illinois. If a judge signs it, it temporarily provides parental responsibilities and parenting time if the child is at risk. It’s not an order of protection (which may also be appropriate, given the facts), and it may not limit the other parent’s access to your child.
What are Child Custody/Parental Responsibilities?
Either parent may seek custody (or parental responsibilities, in Illinois law) of their child or both parents may agree on custody and ask a judge to make their agreement a binding court order. If given legal custody of your child, you can make important decisions about their lives (education, healthcare, religious upbringing). Usually, both parents share these rights. Physical custody (the ability to live with the child and oversee their daily lives) is also normally split.
Child custody cases are a major part of Wolfe & Stec’s family law practice. Having custody status made official is a good idea in many situations, including when you’re divorcing the other parent, if you’re an unmarried couple and want your custody rights formally made, or you want to be a child’s legal guardian.
You may have an unofficial, verbal agreement on your respective responsibilities, but people change their minds or don’t accurately remember what was agreed upon. If a dispute comes up, it’s much better to have a court order detailing who’s responsible for what rather than having two parents argue over who agreed to what, when.
How is Custody Decided in Illinois?
Whether a parent has custody depends on whether it’s in the child’s best interests.
A judge makes the decision based on what they think is in the child’s best interests, given the evidence presented. Issues a judge will consider include:
- What the parents want
- The child’s opinion (Unless a judge has a basis to disagree, generally the wishes of a child 14 or older determine who they’ll live with.)
- The child’s relationship with their parents, family members, and others close to the family
- Whether the parent is willing to cooperate and ensure the child has a relationship with the other parent and family members
- Whether the parents cooperate when raising the child
- Whether the child will leave their home, school, and community, and, if so, the difficulty in adjusting
- The child’s health and that of those involved in their life
- Whether custody by one parent would put the child in danger of physical harm or abuse.
What is an Emergency Custody Order?
It gives you the ability to get your child out of a possibly dangerous situation.
Custody orders usually result from negotiations between the parents or a trial where each side presents evidence and arguments. When necessary and in an emergency situation, what may already be agreed upon can be temporarily changed.
Emergency motions have key differences from those normally filed with the court:
- Standard family law motions must be delivered to or served on the other parent in a certain timeframe, using a given method like the mail. It’s a way to ensure that the other party is aware of what’s going on, can respond, and make arrangements to attend a hearing on the issue. If it’s an emergency motion, only “emergency notice” is required. You need not use the mail, but you must make reasonable attempts to tell the other parent of the emergency motion. Email, text, or a phone call may be enough.
- Usually, with notice, both parties can be present for a custody motion hearing. Emergency motion hearings may be “ex-parte.” This means that an order can be signed even if only the parent seeking the motion is present with their attorney, preventing the other parent’s story from being told. This is also unusual in family law but allowable if the issue truly is a very serious emergency
What are Grounds for Emergency Custody in Illinois?
Your child’s life, health, and safety are threatened.
These motions should be filed when you genuinely, reasonably feel your child’s life or health is threatened. It’s an emergency situation, not one you’re vaguely uncomfortable with because of a possibility of harm. If the other parent is taking your otherwise healthy child on a camping trip and you fear there will be an accident, that’s not an emergency.
What are grounds for emergency custody in Illinois? They might include:
- A child molester will also be on that camping trip.
- The other parent prevents your child from taking needed medication, creating a severe risk of harm.
- The other parent is trying to escape a court order and taking your child across state lines.
In that case, if there’s evidence that the other parent plans on abducting your child, you could file before they leave to try to prevent it from happening. If it has already taken place, you could still file the motion, but it becomes an interstate child custody dispute. If so, it would involve the Illinois Uniform Child Custody Jurisdiction and Enforcement Act, and the court may or may not have jurisdiction over the matter.
What are Possible Problems With the Emergency Custody Order Process?
The situation may not be an emergency and one parent may try to harass the other.
Wolfe & Stec represent parents on both sides of these situations. If a parent contacts us, we have a thorough discussion before moving forward, and we do our best to ensure that this is an emergency justifying court involvement. If our client is the subject of the motion, we get them involved and respond as quickly as possible.
The process of emergency motions can be abused by unrepresented parties or those with attorneys just trying to make their client happy. Because standard notice isn’t required and a hearing can go forward with just one party, a parent who doesn’t know the law or who wants to harass the other parent can file a motion without a good reason.
The filing party may fabricate an emergency. They may make up a story that sounds credible or they may greatly exaggerate facts to make a situation sound far more threatening than it is. A judge may believe the story, sign the order, and change custody by mistake.
If You Have an Emergency Child Custody Issue, Contact an Experienced Attorney Today
Wolfe & Stec custody lawyers have decades of experience working with families facing conflicts. We’re committed to securing the best possible outcome for our clients. Call us today at (630) 305-0222 for an initial consultation so we can listen to your concerns and goals. The child custody lawyers at Wolfe & Stec are on your side.