Emergency Custody in North Carolina
When a child is in danger, the court can act before the other parent is heard.
An emergency custody order, also called an ex parte order, is a temporary order a judge can enter quickly to protect a child. North Carolina limits these orders to a narrow set of situations, and what you put in front of the judge on day one matters.
If a child is in immediate danger, call 911
A court order takes time, even on an emergency basis. If a child is being hurt or is about to be, call 911 first.
When a judge can order emergency custody
Normally both parents get notice and a chance to be heard before a court decides custody. An ex parte order skips that step, so the law allows it only in limited circumstances. Under N.C. Gen. Stat. 50-13.5(d), a judge can change where a child lives without first hearing from the other parent only if:
- The child is exposed to a substantial risk of bodily injury or sexual abuse, or
- There is a substantial risk the child will be abducted or removed from North Carolina for the purpose of evading the authority of North Carolina courts.
The risk has to be real and current. Judges look for specific facts from someone with firsthand knowledge.
What usually qualifies, and what usually does not
Situations that may support an emergency order
- Physical or sexual abuse of the child, or credible evidence of it
- Driving with the child while impaired
- Drug use or an overdose while caring for the child
- Serious, untreated mental health crisis that puts the child at risk
- Threats to take the child out of state or out of the country and not return
- Leaving a young child alone or with a dangerous person
Situations that usually do not
- Returning the child late or missing visits
- Disagreements about school, diet, bedtime or screen time
- A new boyfriend or girlfriend, without more
- Unpaid child support
- A messy home or a parenting style you dislike
- Events from long ago with no current risk
Concerns in the second group can still matter in a custody case. They are handled through a regular or temporary custody hearing, where both parents are heard, and not through an emergency order. For drug and alcohol concerns in particular, see substance abuse and custody.
The emergency custody process
- File a custody case and an emergency motion. If no custody case exists, one is opened. If there is already an order, the motion is filed in that case. The motion is supported by a sworn statement of the facts.
- A judge reviews the motion. The judge reads the sworn filing, often the same day or within a few days, and decides whether the facts meet the statutory standard. The judge may require you to be present and may ask you questions. Procedures differ by county. In some, the motion is filed and you wait for a decision. In others, your attorney goes before the judge, either at a set time or whenever the judge is available. Some counties also require notice to the other parent’s attorney if he or she has one.
- If granted, the order takes effect immediately. The other parent is served with the order and the notice of hearing. The order may direct where the child stays and limit or supervise the other parent’s contact.
- A return hearing follows quickly. Both parents appear, usually within 10 days. Each side can testify, call witnesses and present evidence.
- The judge decides what happens next. The court can continue the order, modify it, or dissolve it, and then the case moves forward toward temporary and permanent custody.
Scheduling and local procedures differ among Mecklenburg, Wake, Gaston and surrounding counties. Our attorneys practice in these courts regularly.
What to bring to an attorney
An emergency motion is decided on paper first. The stronger and more specific the sworn facts, the better the judge can evaluate the risk. Helpful material includes:
- Dates, times and places of specific incidents, written down while you remember them
- Photos, videos, text messages, emails and voicemails
- Police reports, 911 call records and any criminal charges
- Medical or counseling records for the child
- Reports made to the Department of Social Services and what happened afterward
- Names and contact information for people who saw or heard what happened
- Any existing custody order, agreement or protective order
Be accurate. Everything in the motion is sworn, and the other parent will have a chance to respond at the return hearing. Overstating what happened damages your credibility for the rest of the custody case.
Other ways to protect a child quickly
Domestic violence protective order
If there has been domestic violence against you or your child, a protective order can include temporary custody terms along with no-contact provisions.
A report to DSS
In a true emergency, a report to the Department of Social Services may be the right call. Know what follows. Once DSS opens a case, DSS directs it. The matter can move to juvenile court, where a private attorney has far less room to affect the outcome than in a custody case. A report made during a custody dispute can also be read as an attempt to gain leverage. Unless the child is in immediate danger, talk with an attorney before you call about your options and whether you have an obligation to report. More on DSS cases.
Expedited temporary custody hearing
When the facts are serious but do not meet the ex parte standard, you can ask the court for a temporary custody hearing with notice to the other parent.
A child visiting from another state
North Carolina courts can exercise temporary emergency jurisdiction to protect a child who is physically here, even when another state issued the custody order. See our guide to the UCCJEA.
If an emergency order was entered against you
Being served with an ex parte order is frightening, particularly when you believe the allegations are false or exaggerated. What you do in the next few days matters.
- Follow the order. Violating it can lead to contempt and will hurt you at the hearing.
- Do not retaliate or contact the other parent in anger. Assume every message will be shown to the judge.
- Get the hearing date and do not miss it. The return hearing is your first chance to be heard.
- Gather your evidence. Collect messages, records and witnesses that answer the specific allegations in the motion.
- Talk to an attorney right away. The time between service and the hearing is short.
North Carolina emergency custody FAQ
How fast can I get emergency custody in North Carolina?
A judge can review a properly supported emergency motion the same day it is filed or within a few days, depending on the county and the court’s schedule. If the judge grants it, the order takes effect right away and a follow-up hearing with both parents is set soon after.
What counts as an emergency for custody purposes?
North Carolina law allows a judge to change where a child lives without first hearing from the other parent only when the child is exposed to a substantial risk of bodily injury or sexual abuse, or when there is a substantial risk the child will be abducted or removed from North Carolina to avoid the court’s authority.
Can I get emergency custody if there is no custody order yet?
Yes. You file a custody case and an emergency motion at the same time. Until a court order exists, both legal parents generally have equal rights to the child, which is one reason an order matters when there is real danger.
What happens after an emergency custody order is granted?
The order is temporary. The court schedules a hearing, usually within 10 days, where both parents can testify and present evidence. The judge then decides whether to keep the order in place, change it, or end it while the custody case continues.
What if the judge denies my emergency motion?
A denial does not end your custody case. It means the judge did not find the level of immediate risk the statute requires. You can still ask for a temporary custody hearing with notice to the other parent, which many courts schedule on a faster track.
The other parent got an emergency order against me. What should I do?
Follow the order, even if you believe it is based on false statements. Do not try to take the child back yourself. Contact an attorney immediately and prepare for the return hearing, which is your opportunity to give the judge your side with evidence.
Meet with a team near you
Worried about a child’s safety?
Call our intake team. The call is free and is with our intake staff, not an attorney. They will find out whether we can help and schedule a consultation with an attorney in Charlotte, Raleigh or Gastonia.
For general information only; not legal advice. Source: N.C. Gen. Stat. 50-13.5.
Managing Partner and Co-Founder, McIlveen Family Law Firm. Angela is a Board Certified Specialist in Family Law, certified by the North Carolina State Bar Board of Legal Specialization, and an experienced family law trial attorney who represents clients across North Carolina. She personally reviewed this page for legal accuracy.
