New Jersey family courts handle child custody, child support, and divorce cases, among others. Ex parte child custody orders are common requests, and they are of critical importance under certain circumstances. If you are seeking such an order, it is important that you understand what they are and prepare thoroughly for any hearing.
What Is a Child Custody Order?
New Jersey, like other US jurisdictions, recognizes two forms of child custody—physical custody and legal custody. Physical custody concerns the child’s living arrangements, while legal custody concerns the right to make decisions on behalf of the child. A child custody order issued by a New Jersey family court determines who holds these forms of custody over the child.
You can seek a child custody order by applying to a court and attending a custody hearing. The other party (typically a parent) has the right to oppose your application. Ultimately, the judge will make the decision after hearing both parties tell their story and present evidence.
The “Best Interests of the Child”
The “best interests of the child” is the ultimate custody standard. It prevails over the best interests of either parent, both parents put together, or anyone else. This standard does not add up to “whatever the child wants.” It means whatever is best for the child, whether the child likes it or not.
What Does “Ex Parte” Mean?
“Ex parte” refers to a court decision-making process in which the court decides a matter and issues an order after hearing only one side of the story; specifically, the story presented by the party who applied for the order.
Orders made ex parte are almost always temporary orders, made in the heat of an emergency when time is of the essence. Courts grant ex parte orders on child custody issues when the best interests of the child demand quick action, such as:
- Domestic violence cases;
- Imminent parental kidnapping;
- Parental neglect;
- A dangerous living situation; or
- The child’s parent has been arrested, leaving the child without a caretaker.
There are hundreds of other situations that might justify an ex parte order. Courts almost always grant a subsequent hearing on the same issue, where the other side receives notice and an opportunity to present evidence. It is at this hearing that a judge will issue a final, permanent order, which might be different from the ex parte order.
What Is “Clear and Convincing Evidence”?
When you ask a judge to issue an ex parte child custody order, you’re asking for a lot. There are constitutional issues that arise from the issuance of an order that affects a party who had no opportunity to be heard. Consequently, the burden of proof is higher than usual.
To obtain an ex parte child custody order, you must prove your case with “clear and convincing evidence.” This standard requires more evidence than the “preponderance of the evidence” standard that normally applies. By contrast, it requires less evidence than the “beyond a reasonable doubt” standard that applies in criminal court.
Procedure for an Ex Parte Custody Order
To win an ex parte order, you must first file an Order to Show Cause, which is an emergency motion. The court will schedule a hearing within 24 to 48 hours, maybe less.
The judge will then hear the story of the party who applied for the motion, and they will either grant or deny it. The court will also set a hearing date for a full hearing (involving both parties) within a few weeks at most, sometimes less than a week.
Factors That a Judge Might Consider When Evaluating a Request for an Ex Parte Custody Order
Following is a very small sampling of the type of evidence that a judge will consider when evaluating a request for an ex parte custody order:
- Documented instances of physical or emotional abuse;
- Police reports or restraining orders;
- Testimony or statements from credible witnesses;
- Evidence of parental substance abuse, criminal activity, and other similar behaviors
- Troubling psychological evaluations of the child.
A judge might consider many other factors as well, depending on the facts of the particular case at hand.
Why You Need To Hire a New Jersey Child Custody Lawyer if You Seek an Ex Parte Order
Judges hesitate to grant ex parte orders for good reason. Because of their unilateral nature, these orders are very easy to abuse. You will almost certainly need an experienced family lawyer to help you address the court’s understandable skepticism of your ex parte order request.
Contact an Experienced Monmouth County Family Law Attorney at The Law Office of Jennifer J. McCaskill, LLC for Legal Advice
To learn more and get the help you deserve, call our divorce & family law firm in Red Bank. NJ at (732) 747-1882 or contact us online today.
You can also visit our law firm at 157 Broad St #111, Red Bank, NJ 07701.
