New York Emergency Custody Request

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

   New York has no statute that names a stand-alone emergency custody order. A parent seeks custody by petition and order to show cause (N.Y. Dom. Rel. Law 240(1)(a); Family Ct. Act 651(b); 22 NYCRR 202.8-d). Custody is decided on the best interests of the child.

3. 3

   Under 22 NYCRR 202.8-d, motions are brought by order to show cause only when there is genuine urgency, such as applications for provisional relief, a stay is required or a statute mandates it. DRL 240(1)(a) requires verification.

4. 4

   Under 22 NYCRR 202.8-e, a temporary restraining order should not be issued ex parte unless the movant shows significant prejudice from giving notice, or that notice could not be given despite a good faith effort. It is unclear whether that rule governs custody orders to show cause. Where it applies, notice of the time, date and place, with copies of the papers, goes sufficiently in advance to permit an opportunity to appear; no fixed hour or day count is stated. The rule does not apply where an order to show cause or motion requests an order of protection under DRL 240, unless the court orders otherwise.

5. 5

   This page does not state a general deadline for a hearing after an ex parte custody order or a set length for such an order; ask the court. Only for a DRL 240(3) order of protection motion with emergency relief, the hearing is held on the same day or the next day the court is in session after filing (DRL 240(3)(g)). The court decides whether to grant any order.

6. 6

   Under DRL 76-c, a New York court has temporary emergency jurisdiction if the child is present in New York and has been abandoned, or it is necessary in an emergency to protect the child, a sibling or a parent. An order made under that jurisdiction lasts until the home-state court acts. If a prior order or other-state proceeding exists, the order must specify a period. While the child is at imminent risk of harm, the order stays in effect until that court has taken steps to assure the protection of the child. File in Family Court in the county where the child lives, or Supreme Court as part of a divorce. A custody petition is free to file in Family Court. Ask the court clerk which forms and papers are needed.

7. 7

   For abuse, ask about an order of protection under DRL 240(3) or a Family Court Act article 8 family offense proceeding, and report abuse to child protective services. For non-emergency changes, see the modifying child custody guide.

New York Requirements for Emergency Custody Motion

• Petition and order to show cause

  Custody relief is sought by writ of habeas corpus or by petition and order to show cause (DRL 240(1)(a); FCA 651(b)).

• Verification

  On a petition and order to show cause for custody, DRL 240(1)(a) says the court shall require verification.

• Genuine urgency

  Orders to show cause are used only when there is genuine urgency, such as applications for provisional relief, a stay is required or a statute mandates it (22 NYCRR 202.8-d).

• Notice or reason for none

  A temporary restraining order should not issue ex parte absent significant prejudice from giving notice, or a failed good faith effort to give it (22 NYCRR 202.8-e). It is unclear whether it applies to custody.

• Temporary emergency jurisdiction

  DRL 76-c applies when the child is present in New York and abandoned, or emergency protection is needed for the child, a sibling or a parent.

• Facts of the urgency

  State dates, places, people present and the specific harm threatened, in your petition.

• Specific temporary orders requested

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