From time to time, I have parents, grandparents, or other concerned relatives come into the office and ask me about emergency custody orders. Many times, the family member thinks that getting immediate emergency custody of a child is just part of the process. Some even think that as long as they file first, the judge will give them immediate custody. Emergency custody orders, however, are a serious deviation from how things are “supposed to work” in a court of law.

The purpose of the structure of our legal system is to ensure that (believe it or not) both sides of an argument are heard in court. For this reason, as a general rule, a judge cannot talk about a case unless and until all parties to the case are present. In fact, in most courts a sign hangs outside of the judge's door warning that the judge cannot discuss a case without all parties present. Usually, this is a good idea. You wouldn't want your opponent sitting in the judge's office telling their side of the story without you in there arguing your side.

In some emergency situations, however, the court will make an exception to the “everybody must be present” rule. In instances where there is an immediate threat to someone's safety a judge may feel like there is not enough time to get everyone together to argue their sides of the story. When a child's safety is in serious question, the judge may immediately grant custody to a parent or other family member through an “ex parte” custody order. Again, however, there must be a real, actual, immediate threat of harm to the child.

Sometimes it is hard to explain to people that their situation is not an emergency. For example, a man comes in and explains that his wife has abandoned him and taken the children with her to her mother's house in Gadsden. The man explains that he hates his wife with every fiber of his being (and his mother-in-law, for that matter) and is not being granted any visitation with the children. This is not an emergency situation. The man may feel like it is because of the high emotion of the circumstances, but because there is no real, immediate threat of harm to the children, the judge will not enter an emergency custody order granting custody to the father.

Now, let's say the wife has been missing for several days because of her addiction to drugs and when she leaves she stays with another man that repeatedly abuses her. And let's say that she has just called and told her husband that she is on the way to the children's school to check out the children so that she, the abusive boyfriend and the children can all go to Panama City Beach where they all plan to stay, coincidentally, with her drug dealer at his condo. When the husband protests, the wife then says “Well they ain't nothin you can do about it.” This is when it may be time to file for divorce and request immediate ex parte custody of the kids.