Indiana 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

   Ex parte custody relief in Indiana runs through a temporary restraining order (TRO) under Indiana Trial Rule 65(B). In a dissolution or legal separation case, a party may also move for temporary custody with a supporting affidavit (IC 31-15-4-1), and the court may issue a TRO if injury would result without an immediate order (IC 31-15-4-7).

3. 3

   The standard: it must clearly appear from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition (Trial Rule 65(B)(1)). In dissolution cases, IC 31-15-4-7 asks whether injury would result to the moving party if an immediate order were not issued, on the moving party's affidavit.

4. 4

   Notice may be dispensed with only if the affidavit or verified complaint showing is made and the applicant's attorney certifies to the court in writing the efforts, if any, made to give notice and the reasons notice should not be required. The rule text does not say how this applies to a parent without an attorney. The other parent may move to dissolve or modify the order on 2 days' notice.

5. 5

   Duration and hearing: a TRO without notice expires by its terms within the time the court fixes, not to exceed 10 days, unless for good cause shown it is extended for a like period (longer if the restrained party consents or whereabouts are unknown). A preliminary injunction hearing is to be set at the earliest possible time; Indiana sets no fixed day count. The court decides whether to grant any order.

6. 6

   For temporary emergency jurisdiction, IC 31-21-5-4 requires that the child be present in Indiana and either abandoned or in need of emergency protection because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse. Check the Indiana courts self-service site and the clerk for any forms and for the filing court and fee.

7. 7

   Where domestic or family violence appears, an order for protection under IC 34-26-5-9 may be issued ex parte without notice or hearing, with a hearing within 30 days and an effective period of 2 years; custody terms in it are superseded by a dissolution, legal separation, paternity or guardianship court order. Report abuse to child protective services. For non-emergency changes, see the modifying child custody guide.

Indiana Requirements for Emergency Custody Motion

• Affidavit or verified complaint

  Trial Rule 65(B)(1) requires specific facts shown by affidavit or verified complaint before a restraining order can issue without notice.

• Immediate and irreparable injury

  It must clearly appear that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition (Trial Rule 65(B)(1)).

• Injury without an immediate order

  In dissolution and legal separation cases, IC 31-15-4-7 allows a temporary restraining order if injury would result to the moving party without an immediate order, on the moving party's affidavit.

• Attorney certification of notice efforts

  Notice may be dispensed with only if the applicant's attorney certifies in writing the efforts, if any, made to give notice and why notice should not be required (Trial Rule 65(B)(2)).

• 10-day limit on a TRO

  A TRO without notice expires within the time the court fixes, not to exceed 10 days, unless extended for a like period for good cause shown (Trial Rule 65(B)).

• Temporary emergency jurisdiction

  IC 31-21-5-4 applies when the child is present in Indiana 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 threatened, in the sworn facts.

• Specific temporary orders requested

  List each order sought, such as temporary custody, limited or supervised parenting time, or a restraint, as separate alternatives.