In many cases, parents want an immediate court date to modify custody due to what they believe is an “emergency” matter. This may range from denying parenting time on a significant holiday and the children not being able to attend an important family event to a new relationship one parent develops with a person who the other parent believes is a bad influence on the children and/or puts them in harm’s way. Clearly, Indiana Courts have the authority to conduct emergency custody modification hearings (and do) to look out for a child’s best interests. However, in most cases, these types of cases are not emergencies. This blog covers how courts and attorneys assess any emergency modifications of physical custody.
To properly understand if you have the kind of case that may be right to seek emergency physical custody, a parent needs to understands some of the laws, public policies, and psychology of emergency custody proceedings. First, to obtain a modification of custody (emergency or otherwise) a parent must show by a preponderance of the evidence, that there has been a substantial change in circumstances and it is in the children’s best interest to have custody modified. For a matter to be a true emergency and get an emergency hearing (in fairly short time frame), the parent ordinarily must allege a physical or emotional risk to the children.
For example, an “emergency” matter could be a parent’s overdose on legal or illicit drugs. Other examples of what practitioners and judges see as true emergency situations include, but are not limited to, the following:
- Arrest for serious crimes (and perhaps less serious crimes if the children are present and/or involved in the crime).
- Drug overdose.
- Suicide attempt.
- Incapacity (such as if a parent is hospitalized for a long duration or institutionalized).
In these cases, the court may entertain an “emergency” custody modification hearing. Further, if the situation is serious enough, the court may order supervised visitation when it modifies physical custody to ensure the children’s’ well-being and/or suspend visitation. That said, the court will carefully scrutinize any emergency petition, but it will not be well received on a busy trial judge’s calendar unless it is a true emergency. The balance of cases will be heard in due course and are not emergencies. For example, a court can consider and modify custody when a child reaches the age of fourteen (14). However, it has to be in a child’s best interests and is not the basis for an emergency filing.
Second, from a public policy standpoint, a court can continually modify child custody if the facts and law support a modification that is in the children’s best interests. However, modification proceedings (unlike the original determination of custody where both parents are equally presumed to be fit custodial parents) require an evidentiary showing of a substantial change in circumstances and it is in the child’s best interests. Thus, a controlling public policy is parents should not constantly engage in child custody litigation, as this impacts the children and their sense of stability, not to mention wastes limited judicial resources. Furthermore, another legal policy is the rule of finality. This legal policy is that once a case is decided, it should not (or cannot in most other civil cases) be relitigated. The case needs to be closed and the litigants move on with life. Continual litigation only creates further hostility and embeds the parties in their positions and they cannot effectively move on in life.
Third, a great deal of psychology plays into any custody decision and modification actions. As it relates to parents, some parents (who have at one time been unable or unwilling to take care of the children for one reason or another) believe getting their life back together is a basis for modification, but this rarely reflects a substantial change in circumstances relevant to the children. With children, one of the paramount psychological principles is the need for routine and structure; this does not occur with constant custody litigation and actual modifications of physical custody. Permanency in a home and community provides children with a sense of well-being to advance socially. Every judge and domestic attorney knows of or has cases where the children are constantly involved by their parents in child custody litigation. This involvement may range from the parents telling the children details of the case to down right alienation from the other parent (which are not favored by courts) to GAL investigations and interviews of the children or more invasive child-custody forensic custody evaluations (by a Ph.D. child psychologist), where the children may be subject to multiple interviews with the custody evaluator, with and without his or her parents present.
Ultimately, Indiana courts will (and want to) modify custody if it is the children’s best due to an emergency or because the facts have substantially changed and it is in the children’s best interest to modify. If you are seeking a modification of physical custody or are already embroiled in child-custody litigation, it is key to work with skilled domestic counsel to decide if you are going to file and/or how to properly litigate your case under the substantial change rule. The right filing and timing, along with the right evidence, is what it takes to defend against or litigate for a custody modification. Dixon & Moseley, P.C. advocates handle child custody cases and appeals across the state. This blog is written for general educational purposes and is not legal advice. It is an advertisement.