Illinois 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 protect a child in the moment.

2. 2

   Illinois has no section titled emergency custody. Ex parte relief runs through the temporary restraining order provisions, 750 ILCS 5/501(b) and 735 ILCS 5/11-101. Temporary allocation of parental responsibilities under 750 ILCS 5/603.5(a) follows best-interests standards after a hearing. The court decides whether to grant any order.

3. 3

   For an order without notice, the court must find, on the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed. Under 735 ILCS 5/11-101 it must clearly appear from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result.

4. 4

   Notice to the other parent is required unless the ex parte standard is met. A preliminary injunction is never granted without previous notice of the time and place of the application (735 ILCS 5/11-102).

5. 5

   A temporary restraining order issued without notice expires within the time the court fixes, not to exceed 10 days, unless extended once for a like period for good cause shown. The motion for a preliminary injunction must be set for hearing at the earliest possible time, and the other parent may move to dissolve the order on 2 days' notice.

6. 6

   Illinois courts have temporary emergency jurisdiction under 750 ILCS 36/204 if the child is present in Illinois and has been abandoned, or emergency protection is needed because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse.

7. 7

   Ask about an emergency order of protection under the Illinois Domestic Violence Act (750 ILCS 60/217), which can give physical care and possession of the child but not legal custody, and contact DCFS. For non-emergency changes, see the modifying child custody guide.

Illinois Requirements for Emergency Custody Motion

• Ex Parte TRO Under 501(b)

  Illinois has no emergency custody statute. A court may issue a temporary restraining order without notice only on a finding that irreparable injury will result to the moving party, based on the moving affidavit or other evidence (750 ILCS 5/501(b)).

• Immediate and Irreparable Injury

  It must clearly appear from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result (735 ILCS 5/11-101).

• Sworn Affidavit of Facts

  The motion needs a supporting affidavit or verified complaint stating the specific facts of the emergency.

• Notice Unless Exception Applies

  Notice is required unless the ex parte standard is met, and a preliminary injunction is never granted without previous notice (735 ILCS 5/11-102).

• 10-Day Limit on Ex Parte Order

  A restraining order without notice expires within the time the court fixes, not to exceed 10 days, and may be extended once for a like period for good cause (735 ILCS 5/11-101).

• Hearing at the Earliest Possible Time

  The preliminary injunction motion is set for hearing at the earliest possible time, and the other party may move to dissolve the order on 2 days' notice (735 ILCS 5/11-101).

• UCCJEA Temporary Emergency Jurisdiction

  An Illinois court has temporary emergency jurisdiction if the child is present in Illinois and abandoned, or emergency protection is needed because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse (750 ILCS 36/204).

• Domestic Violence Emergency Order Route

  An emergency order of protection under 750 ILCS 60/217 may give physical care and possession of the child (750 ILCS 60/214(b)(5)) but may not include a legal custody remedy.