( 300+)Family law courts typically move slowly. Judges do not decide critical issues until they hear from both sides and review evidence before issuing a thoughtful opinion. When a child is in imminent danger, however, time is of the essence. The courts should act to protect a child, at least until they can figure out what is going on.
In South Carolina, parents or even concerned relatives might seek emergency child custody when a child is in danger. As an example, you might fear your ex-spouse is abusing your child, so you want to alert the court. This is not an easy motion to win, and anyone hoping to seek emergency custody needs supporting evidence. Contact our firm to speak with a Greenville child custody attorney. In this article, we review how to get emergency custody and encourage you to contact our office immediately for assistance with this type of case.
Steps to Requesting an Emergency Custody Order in South Carolina
South Carolina Code § 63-7-740 gives a judge the power to order that a child be taken into emergency protective custody without notice to the parents or guardians. A judge can only order protective custody if the child is in imminent and substantial danger.
Here is how to file for emergency custody in South Carolina:
- Identify whether you have grounds. To be successful, you will need to show that a child is in sufficient danger to warrant emergency custody. You do not file this motion simply because you want to modify custody. Instead, you are trying to prevent imminent harm.
- Gather evidence in support of your motion. Although a judge can grant an emergency motion without a hearing, you still need evidence in support. Why do you think a child is endangered? For example, the other parent might have abused the child, based on police reports. Or the other parent has neglected the child by an extended absence from the home.
- File a motion. You or an attorney should draft a Motion for Emergency Temporary Custody and file it in the family law court in the county where the child is residing. You will need supporting documentation, such as police reports and affidavits.
- Wait for the judge’s decision. This is an ex parte motion, meaning there is no hearing. The judge will review the emergency motion and supporting documentation to see whether to grant the motion.
- Attend an emergency hearing, if necessary. The judge might schedule an emergency hearing to hear from both sides.
What Happens after Emergency Custody is Granted in South Carolina?
South Carolina Code § 63-7-700 also identifies what can happen after a child has been taken into emergency protective custody.
Preliminary Investigation and Meeting
Emergency custody is just that: an emergency measure. Parents will not lose custody permanently on the basis of an ex parte order. Instead, South Carolina Code § 63-7-640 calls on the Department of Social Services to conduct a preliminary investigation.
The focus of the investigation is to see if removal was warranted and whether there are reasonable means for avoiding removal. The goal is to minimize the impact on the child.
The law also calls for the Department to arrange a meeting, if possible, with the child’s parents or guardian to discuss the reasons for the intervention. This preliminary investigation should happen within 72 hours of the child being taken into custody.
Probable Cause Hearing
The Court should also schedule a probable cause hearing within 72 hours of the child being taken into custody. This hearing may be held by video conference.
At this hearing, the judge will decide if there was probable cause to take emergency protective custody of the child. This is a critical hearing because it is the first time a judge takes a thorough look at evidence.
If you requested custody, you can present evidence to support your position. The parent from whom the child was taken can also submit evidence to contest the removal. This evidence might be in the form of sworn affidavits, or live witnesses could testify and be cross-examined.
Hearing on the Merits
The court should schedule a hearing to determine whether to modify custody or even terminate parental rights. At this hearing, you can present evidence in support of your contention.
As mentioned, emergency custody is a temporary measure. The court acts quickly to protect a child who is vulnerable to suspected abuse or neglect. But the courts do not allow a child to be removed for an extended period without a solid reason.
How a Lawyer Can Help You
Are you concerned that a child is endangered? At Elliott Frazier — Family, Personal Injury, & Car Accident Attorneys, LLC, we often hear from parents who are divorced and worry that the other parent is a danger to their children. They need help requesting emergency custody.
One option is to call the police or the Department of Social Services to share your concerns. Law enforcement can take possession of the child in an emergency and turn them over to DSS. The Department then reaches out to parents to notify them of upcoming court hearings.
However, we can work directly with concerned parents or other family members to:
- Find evidence in support of your motion. As a case proceeds, the court wants to see more credible evidence. The judge might grant an ex parte motion based only on your sworn testimony, but at subsequent hearings, you will need additional evidence, such as witnesses.
- Draft the correct motion and file it in the correct court. Filing in the wrong court can delay relief.
- Coordinate with the Department of Social Services. They will be involved if there are allegations of abuse or neglect.
- Attend all hearings and present evidence to the judge. A judge is supposed to be unbiased, and they do not assume the truth of allegations against the defendant.
Contact Our Greenville Family Law Attorney for Help
Too many children are abused or neglected in South Carolina. Contact us to discuss how to file for emergency custody in South Carolina. We have helped many people in the 29605 zip code with custody cases, and we can meet in a private consultation to discuss all options.
