Question on Ex Parte Motion

[joni]

How does this work?

We're in IL, Mom's in NY, Jurisdiction is MI.  Mom consented to remaining under MI jurisdiction as part of her moveaway for the next two years.  If mom tries to file in NY, she's automatically in contempt.  Mom has sole legal and physical custody.

We currently have child on extended summer visit.  We were prepared to file for emergency custody this coming week based on child abuse perpetrated by mom.  Have extensive psychologist report validating the abuse as well as photos.  By law, therapist notified DCFS who is starting their investigation.  DCFS in IL and CPS in NY told us to keep the child but we need a court order to do so.

Found out yesterday that mom left country on vacation and won't return until the 21st.  Child is due to be returned on the 22nd.  We're not returning the child.  Mom is unaware of all of this.

As mom won't be available to be notified of this emergency custody via proper service, will we be able to obtain a ex parte court order temporarily?  UCCJEA states that IL can have jurisdiction over this provided the child is here and in danger.

We're very nervous and concerned that there may be something we're overlooking or not considering.

Thanks in advance.

[dad323]

Ex Parte means that the court order is in effect without service or consent of the other party.  It is an emergency order for the safety of the parties involved.  The other party can be served when they try to violiate the order.  Since they would not know the order is in effect, they could not be charged with the violation.  But no law enforcement officer would let them have possession of the child in question as long they knew about the Ex Parte order.  The main thing for the safety of the child would be to make sure that whoever is caring for him/her has a certified copy of the court order.  I live in NC and this is how the law is here. I don't think the definition would change all that much.  

[socrateaser]

>Ex Parte means that the court order is in effect without
>service or consent of the other party.  It is an emergency
>order for the safety of the parties involved.  The other party
>can be served when they try to violiate the order.  Since they
>would not know the order is in effect, they could not be
>charged with the violation.  But no law enforcement officer
>would let them have possession of the child in question as
>long they knew about the Ex Parte order.  The main thing for
>the safety of the child would be to make sure that whoever is
>caring for him/her has a certified copy of the court order.  I
>live in NC and this is how the law is here. I don't think the
>definition would change all that much.  

I cannot permit you to practice law on this board. Feel free to state your personal experiences and/or empathy, but do not attempt to analyze a poster's facts and come to a legal conclusion, or I will delete your posts.

Thanks in advance for your cooperation.

[joni]

Thanks ;-)

[Giggles]

A couple years ago, I filed for an Ex-Parte here in MD.  It was granted and then served on the other party.  They fought it and won because MD didn't have "jurisdiction" so the Ex-Parte was over turned.  The court did tell me that if I had filed in the jurisdiction of the "child" then it probably wouldn't have been overturned.

If possible, I would consider filing in MI since they have jurisdiction.

[socrateaser]

If you ask the court for an emergency TRO order based on an NY CPS investigation based on affidavits from CPS and a reporting therapist stating that there is credible evidence of abuse, you should get the TRO.

However, if your motion is based on nothing but your statement of what these mandatory reporters and investigators state, then the court will probably deny your motion. So, get a sworn declaration from the therapist and the CPS investigator, or at least one of them, and you should be ok.