Delaware Emergency Custody Motion

Introduction

Key Things to Know

1. 1

   If a child is in immediate danger, call 911 now. A court filing takes time and cannot replace emergency help.

2. 2

   Delaware calls it an emergency ex parte order under Family Court Civil Rule 65.2(a), which says the Court may enter it upon the motion of any party or on the Court's own motion. A custody petition must already be filed or be filed with the motion.

3. 3

   The court must determine, by affidavit or verified complaint, that immediate and irreparable harm will result. For a child that means: (1) immediate threat to health and safety due to previous or threatened serious physical abuse with likelihood of recurrence; (2) immediate harm from present deprivation of food, shelter or medical attention; or (3) the child was removed from Delaware in violation of a statute or court order. The court decides whether the showing is enough.

4. 4

   An order may be entered without notice only where the court finds immediate and irreparable harm, and the movant must certify why notice should not be required. The Family Court FAQ also says a good faith attempt must be made to mail a copy of the motion to the other party. The request is usually decided without notice and may not be ruled on the same day.

5. 5

   The order is temporary. Rule 65.2(a) says a hearing within ten days; the Family Court FAQ says a hearing officer issues the order and schedules a hearing within fifteen days. Confirm the date with the clerk. The order is not extended past the evidentiary hearing deadline unless the court extends it for good cause shown.

6. 6

   The official form is Form 650, Motion and Affidavit for Emergency Ex Parte Order (not for protection from abuse cases). Related court forms include Form 651 (priority scheduling) and Form 652 (interim relief). Confirm with the clerk whether Form 650 is required in your case.

7. 7

   If the child is present in Delaware, 13 Del. C. section 1923 gives temporary emergency jurisdiction when the child is abandoned or needs emergency protection because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse. File in Family Court in New Castle, Kent or Sussex County. For abuse, ask about a protection order (10 Del. C. section 1043) and contact the Division of Family Services; for non-emergency changes, see the modifying child custody guide.

Delaware Requirements for Emergency Custody Motion

• Underlying custody petition

  The emergency ex parte motion needs a custody petition already pending or filed with it (Family Court FAQ).

• Affidavit of immediate and irreparable harm

  Rule 65.2(a) requires the court to determine, by affidavit or verified complaint, that immediate and irreparable harm will result.

• Child-specific harm definition

  Immediate threat to health and safety from previous or threatened serious physical abuse with likelihood of recurrence, immediate harm from present deprivation of food, shelter or medical attention, or removal from Delaware in violation of a statute or court order.

• Certification on notice

  The movant must certify why notice should not be required, and a good faith attempt must be made to mail a copy of the motion to the other party.

• Hearing on the emergency order

  Rule 65.2(a) says a hearing within ten days; the Family Court FAQ says fifteen. The order is not extended past the hearing deadline without good cause shown.

• Temporary emergency jurisdiction

  13 Del. C. section 1923 applies when the child is present in Delaware and abandoned, or needs emergency protection because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse.

• Facts of the emergency

  State dates, places, people present and the specific harm, in the sworn affidavit.

• Specific temporary orders requested

  List each order sought, such as temporary custody, limited or supervised contact, or return of the child to Delaware, as separate alternatives.