Maybe. As a general rule, the Indiana Department of Child Services has a hotline that parents and others may call1 (or must if they are a mandated reporter) to report cases where children are in danger. These reports are immediately investigated, and if need be, the children can be removed from one or both parents, followed by an emergency detention hearing. That said, there are remedies divorced parents (and those with children born out of wedlock) may follow to obtain “emergency custody” that does not involve the Indiana Department of Child Services. These legal tools that are available through divorce or paternity courts are the focus of this blog post.2
In certain situations, many of them related to illicit drug use, a child may be at risk of extreme duress, death, or flight with an impaired parent. In these extreme cases, it is possible for a litigant through counsel to seek a temporary restraining order without written or oral notice to the other parent (adverse party) in such extraordinary circumstances.3 The rule is very complex because it is depriving a party of the right to advance notice and an opportunity to be heard before a change in custody (if successful). Specifically, a temporary restraining order may be granted without notice to the adverse party and his or her attorney if (1) it clearly appears from specific facts shown by affidavit or by 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 notice and the reasons supporting his claim that notice should not be required.4
However, under both the Divorce and Paternity Acts, Indiana trial courts can set emergency hearings and temporarily or permanently modify custody where a child is placed in danger by a parent. This may be done as a part of a divorce filing or in post-decree scenarios, such as if one parent is impaired by being intoxicated on alcohol or drugs and is in an accident with the child. In this case, an attorney may seek an emergency hearing on the modification of custody. However, under these statutes, the opposing (impaired) parent would have advance notice and an opportunity to be heard. If granted, the impaired parent would likely be ordered to have supervised visitation.5
However, every county is vested with the power to make local rules that may address emergency custody matters differently. For instance, in Morgan County, local rules would anticipate involving the Indiana Department of Child Services first and allowing them an opportunity to address the matter before making an emergency filing with the trial court. Specifically, the local rules state:
“No emergency changes of child custody will be scheduled on the Court calendar, except
by prior approval of a Judge or Magistrate. In the event there is a potential for physical
harm to the children or neglect alleged by either parent, the Court will consider custody
on a temporary basis filed in writing not earlier than 72 hours after the case has been
referred to the Morgan County Department of Child Services, Child Protection Services,
pursuant to the Indiana Juvenile Code. The party requesting emergency custody must
show proof of the date and time of notification of the Morgan County Department of
Child Services, and the name of the person taking the report.”6
Ultimately, there are many ways to obtain emergency custody, but because such involves the child’s best interests, due process, and overlap with the jurisdictional territory of the Indiana Department of Child Services, you need a skilled attorney to navigate these legal waters in an effort to protect and meet your child’s best interests. The Indiana lawyers and judiciary stand ready, willing, and able to assist but the facts have to be developed and properly presented to them to avoid violations of due process which weakens the entire judicial system. This blog was written by advocates at Ciyou & Dixon, P.C. who handle domestic matters of all types throughout the State. This blog is not intended as legal advice or a solicitation of services. It is an advertisement.
- It is important to note that the sources of relief and limits on obtaining “emergency custody” are found in the Divorce and Paternity Acts, Indiana Rules of Trial Procedure, and local rules of any given county. All should be consulted.
- Indiana Rule of Trial Procedure 65(B).
- Failure to follow the precise requirements of Indiana Rule of Trial Rule 65(B) can have professional consequences for the attorney. In the Matter of Anonymous, 729 N.E.2d 566 (Ind.2000).
- Indiana Code section 31-17-4-1(a).
- LR55-FL00-5: Emergency Custody Orders