Today, a mother was drinking and driving in Durham, North Carolina and she crashed her car and two children were killed. Did you know that, in many instances, Wake County judges do not issue emergency orders when there are allegations (and even proof) of drinking/driving/drug use?
According to N.C.G.S. §5013.5 (the custody statute), the only grounds for emergency custody that changes the status quo living environment of minor children are:
(d)(2) If the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child the court may enter orders for the temporary custody and support of the child, pending the service of process or notice as herein provided.
(d)(3) A temporary order for custody which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts.
What is a substantial risk? It is in the sole discretion of the judge based on a filed document. In Wake County, the lawyer prepares a Motion and submits it to the case coordinator. There is no contact between the judge and the attorney and typically, the judge does not contact the attorney with any questions. It is just allowed or denied and the attorney does not know the reasoning.
Fundamentally, it has been the experience of most divorce attorneys in Wake County that most ex parte requests are denied. An ex parte request is essentially an emergency request without giving the other party an opportunity to have a hearing before the Order is entered.
What can a parent do? Hire a private investigator? Have a therapist testify? Provide a substantial criminal record of drinking and driving or drug arrests? Produce witnesses to say the child's in danger? Judges in Wake County have a high bar to enter emergency Orders that are in place for ten (10) days and yet, children remain in danger in so many instances.
Do not blame your judges but be sure you know their history prior to voting. Make sure you contact your local legislator to implement laws that can change the wording of the statute. Working together with your local MADD offices can create an impact. Do not consent to shared custody with a parent with known addictions.
It is all about protecting the children over the rights of any parent.