Maine 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

   Maine has no dedicated ex parte custody statute. The routes are an interim order on parental rights and responsibilities (M.R. Civ. P. 107(a)(1)), possibly a temporary restraining order without notice (Rule 65(a)), an expedited hearing (Rule 107(c)) and, for abuse, an ex parte temporary order in a protection from abuse case (19-A M.R.S. 4108). Ask the court clerk whether Maine's Family Division applies Rule 65(a) to custody.

3. 3

   For a no-notice restraining order under Rule 65(a), if the court applies it to custody, 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 that party's attorney can be heard in opposition. An attorney's written certification of notice efforts is also required.

4. 4

   Rule 107(a): no orders before judgment may be entered without notice to the parties or upon motion, and the motion must come with a draft order. Ask the clerk how much notice is needed. A protection from abuse temporary order is heard ex parte on a showing of immediate and present danger of abuse.

5. 5

   After a no-notice restraining order under Rule 65(a), where the court uses it, the preliminary injunction motion is set at the earliest possible time and the other party may move to dissolve on 2 days' notice. The order expires within the time the court fixes unless extended for good cause. In a protection from abuse case, the full hearing must be held within 21 days of filing (19-A M.R.S. 4109). The court decides whether to grant any order.

6. 6

   Official forms are required. An expedited hearing needs the court-approved Request for Expedited Hearing form and extraordinary circumstances (Rule 107(c)). Interim motions need a witness list, a time estimate and a draft order, and hearings run no longer than three hours (Rule 107(b)). The OTH-041 packet starts a parental rights case.

7. 7

   Under 19-A M.R.S. 1748, a Maine court has temporary emergency jurisdiction if the child is present in Maine and abandoned, or emergency protection is needed because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse. File in the Probate Court or District Court in the county or division where either parent resides (19-A M.R.S. 1654). For abuse, consider a protection from abuse complaint and Maine DHHS child protective services. For non-emergency changes, see the modifying child custody guide.

Maine Requirements for Emergency Custody Motion

• Affidavit showing immediate and irreparable injury

  Where the court applies it to custody, Rule 65(a) allows a no-notice restraining order only on specific facts, by affidavit or verified complaint, showing immediate and irreparable injury before the other party can be heard.

• Attorney certification of notice efforts

  Where the court applies it to custody, Rule 65(a) requires the attorney's written certification of efforts to give notice when relief is sought without notice.

• Notice and draft order

  Rule 107(a) bars orders before judgment without notice to the parties or upon motion, and the motion must be accompanied by a draft order.

• Witness list and time estimate

  Rule 107(b) interim motions require a witness list, a time estimate and a draft order, and the hearing is capped at three hours.

• Request for Expedited Hearing form

  Rule 107(c) requires the court-approved Request for Expedited Hearing form and extraordinary circumstances.

• Temporary emergency jurisdiction

  19-A M.R.S. 1748 applies when the child is present in Maine 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 affidavit.

• Specific temporary orders requested

  List each order sought, such as interim parental rights, limited or supervised contact, or a restraint, as separate alternatives.