Who has Custody without a Court Order? Part 2 – It’s an Emergency

Continuing with our discussion regarding who has custody prior to the Court deciding, this is part 2.  Many clients come to me saying, he/she took the child and won’t let me see the child.  It’s an emergency, and I need an emergency custody hearing!!  This post is intended to provide information about the types of custody hearings that Chancery Courts hold to determine temporary custody, emergency custody and “permanent” (no such thing) custody.

Emergency custody hearings, surprisingly enough, require an emergency – A REAL, TRUE LIFE EMERGENCY.   The Miss. R. Civ. P., Rule 65(b) provides:

b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted, without notice to the adverse party or his attorney if (1) it clearly appears 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, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes (except in domestic relations cases, when the ten-day limitation shall not apply), unless within the time so fixed the order for good cause shown is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be stated in the order.
In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and take precedence over all matters except older matters of the same character. When the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order.
On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

This means that you must certify your attempts to contact the opposite party and provide a reason that no notice is required for the Court to proceed with a hearing.  You must show, and the Chancellor must find, that immediate and irreparable harm will result if the Court does not issue an emergency Order.  Take a moment to say those words out loud – IMMEDIATE AND IRREPARABLE DAMAGE.  Ask yourself, what is happening that would cause harm to this child immediately.  The fact that the other parent has the child at his or her home and you do not is not enough.  You should be seeking temporary relief, not emergency relief.

Temporary Custody hearings are under the authority of Chancery Court as pursuant to Miss. R. Civ. P., Rule 81(d).  Again, the quote Deborah Bell and her second edition book Mississippi Family Law, “a temporary award is not res judicata as to facts existing prior to the temporary order; courts undertake a comprehensive de novo review to determine permanent custody. (Bell at 336 in 2nd Edition) In my experience, I have had Chancellors tell me that they don’t even have to consider the Albright factors to provide a temporary award.  A temporary award is not the final say, but in my experience, the judge rarely changes his or her mind in the custody trial.  Practically, the judges like for children to have stability and not be tossed around – you know – that “best interest” thing.  Often clients and their significant others are worried about themselves and the children are just a pawn in their game.

Temporary hearings do not happen quickly.  Though, technically under Rule 81(d), a hearing may be held within seven (7) after service of process on the other party, many Courts have crowded dockets.  The average time that I see ranges from a few weeks – eight (8) months for a temporary hearing to be scheduled.  Lawyers do not make the Court schedules.  Do not blame your lawyer if your hearing is scheduled three months from now – it is very likely the Court’s docket is too full to have the hearing any earlier.  What do you do until then?  You wait – try co-parenting, talking – you know – the things that rational parents do on a daily basis.  Basically, it is the wild west as I have experienced.

Finally, a custody trial is based on the best interest analysis taken from the case Albright v. Albright, 437 So.2d 1003 (Miss. 1983).  The Court delineated certain factors that the Court should analyze in custody cases.  Those factors are not exhausted, and just because you “win” the most factors, does not mean that you win the custody case.  These factors are “borrowed” from a wiser blogger’s post: https://chancery12.wordpress.com/?s=child+custody

1. Age, health and gender of the child.
2. Parent having continuity of care prior to the separation.
3. Parent with best parenting skills and willingness and capacity to provide primary child care.
4. Employment of the parent and responsibilities of that employment.
5. Physical and mental health and age of the parent.
6. Emotional ties of parent to child.
7. Moral fitness of the parent.
8. Home, school and coomunity record of the child.
9. Preference of the child at age sufficient to express a preference.
10.Stability of parent’s home environment and employment of each parent.
11. Relative financial situation of the parents.
12. Difference in religion of the parents.
13. Differences in personal values of the parents.
14. Differences in lifestyle of the parents.
15. Other factors relevant to the parent-child relationship.