Few things in family law (particularly child custody) seem as simple to clients and as vague to their attorneys as emergency child custody. It’s easy to joke that “for a client in a custody battle, everything is an emergency.” Just asking, “What is an emergency?” can impact many aspects of a custody case. The attorney’s interpretation of a set of facts as non-emergency may affect the attorney’s relationship with a client seeking an attorney to “fight for them.” The frequency with which a particular practice or attorney files emergency petition after emergency petition could impact the attorney’s reputation with judges and their staff. More importantly, the attorney’s decision to characterize a set of facts as an emergency and request emergency assistance on behalf of the client may have strategic value to an ongoing case and bring material or (more likely) procedural benefits to the case. It could also do the opposite and end up being the “cried wolf” filing. In counties that have adopted or are aspiring to “One Judge, One Family,” you don’t want to make a fake emergency application to placate the client and allow yourself to damage your own case from the start.
Let’s start by trying to answer the most obvious question: “What is an emergency?” You may be surprised to learn that not only is there no definition in the code, but the word “emergency” never actually appears in all of Chapter 53 . In the Custody Rules of Procedure, Chapter 1915 makes only passing reference to an “emergency” when it comes to the appropriate forum, and then refers to the emergency jurisdiction found in UCCJEA.