Arons & Solomon Divorce Lawyers | August 30, 2022 | Child Custody
Generally, you must file a motion asking for child custody. The motion is served on the other side, and the court grants a hearing. The other side has the opportunity to respond to the motion and argue against your request at the hearing.
An ex parte motion may be granted without a hearing and without giving the other side a chance to respond. Typically, the ruling is temporary and could change at a final hearing on the matter.
Why Would a Judge Grant an Ex Parte Custody Order?
Judges hesitate to grant ex-parte orders because the other party has not had the opportunity to respond to the allegations against them. However, ex parte orders are used when it is necessary to protect the child.
The judge only considers ex parte child custody motions when it is an “emergent matter.” In other words, there could be immediate and/or permanent harm if the matter was placed on the hearing docket with other non-emergency motions. Depending on the court’s schedule, it could take weeks for a motion to be scheduled for a hearing.
An example of an emergent custody matter would be to protect a child from domestic violence, physical abuse, or sexual abuse. Another example might be to help protect the child from being the victim of parental kidnapping. A third potential reason for an ex parte custody motion would be a family member seeking custody because the parents have abandoned the child or are unfit to care for the child.
How Does an Ex Parte Motion Work in Bergen County?
Ex-parte custody orders may be granted when the child is in danger, or their safety is at risk. It is crucial that you consult with a child custody lawyer immediately if you need to protect your child from their other parent or another person.
Typically, a child custody lawyer files an Order to Show Cause, which is an emergency motion. The court usually schedules a hearing within one or two days, depending on the urgency of the matter. The judge can hear and decide the motion without notifying the other party.
The court then schedules a full hearing on the matter. The full hearing could be held within a week of the ex parte hearing or in several weeks. The other party receives notice of the hearing and can appear to object to the relief you requested (i.e., sole custody of the child, supervised visitation, no visitation with the child, etc.).
Establishing a Threat of Immediate and Irreparable Harm
New Jersey court rules state that “temporary restraints or other interim relief” will not be granted before the full hearing unless the other party is given notice of the Order to Show Cause or consents to the relief requested. Therefore, if you ask the court to rule ex parte, you have the burden of proving that “immediate and irreparable damage” is likely to occur before the other party could be served and a hearing on the matter held by the court.
The judge must find clear and convincing evidence to support the motion. That means the judge must find that the evidence presented is substantially and highly more likely to be factual than untrue. It is a level of proof that is slightly higher than the burden of proof used in non-emergency matters.
How Are Child Custody Cases Decided in Bergen County?
Judges in Bergen County may award joint custody to both parents or sole custody to either parent. In some cases, the court might award custody to a grandparent or other relative if the child’s parents are unable to or unfit to have custody.
Custody decisions in New Jersey are based on the “best interest of the child.” New Jersey Statutes Annotated 9:2-4 lists factors the court shall consider when making custody decisions. The factors include:
- Any history of domestic violence, physical abuse, or other safety issues
- The parent’s willingness and ability to care for the child and to cooperate and communicate in the care of their child
- The child’s relationships with the parents and siblings
- The child’s preferences when old enough to make reasonable decisions
- Each parent’s fitness, work responsibilities, and stability of the home environment
- The child’s special needs
- The distance between each parents’ homes
- The quality of the child’s education
- The amount and quality of time the parents spent with the child before the separation
The judge may also consider any other factors that could be relevant to the custody decision. While the court may consider the wishes of parents, grandparents, the child, siblings, and other interested parties, the court prioritizes the above factors over those wishes. The underlying concern and basis for all child custody decisions are the child’s best interests.
Contact the Bergen County Family and Divorce Law Firm of Arons & Solomon Divorce Lawyers for more help
Contact the experienced family attorneys at Arons & Solomon Divorce Lawyers today for legal assistance. Visit our law office in Bergen County or give us a call at (201) 487-1199 to schedule a free consultation with our team.