Few things in family law (in child custody specifically) appear so straightforward to clients and so unclear to their attorneys as does emergency child custody. It is easy to quip that, “to a client in a custody battle, everything is an emergency.” However, the very question of “what constitutes an emergency?” may have consequences on numerous aspects of a child custody case. The attorney’s interpretation of a set of facts as a nonemergency may affect the attorney’s relationship with a client who is looking for an attorney to “fight for them.” The frequency of a particular practice or attorney filing emergency petition after emergency petition could have an effect on the attorney’s reputation with judges and with their staffs. More importantly, the attorney’s decision to characterize a set of facts as an emergency and to seek emergency relief for the client may have strategic value to an ongoing case and may provide substantive or (more likely) procedural benefits to the case. It could also act in the opposite and wind up being the filing “that cried wolf.” In counties that have adopted or that strive for “One Judge One Family,” you don’t want to file a specious emergency petition to appease the client and allow themselves to damage their own case from the get-go.

Let’s start by attempting to answer the most obvious question, “What is an emergency?” You may be surprised to learn that there is not only no definition in the code, but in the whole of Chapter 53 the word “emergency” never actually appears. In the procedural rules pertaining to custody, Chapter 1915 only makes passing reference to an “emergency” when considering the appropriate venue and then makes refence to emergency jurisdiction found in UCCJEA.