Drinking/Alcoholic Parents - Wake County Emergency Orders

Posted by Kathleen Murphy | Apr 27, 2020

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.

About the Author

Kathleen Murphy

Kathleen Murphy is graduate of North Carolina State University with a B.A. in Political Science, 1985. She attended Campbell University Law School and received her Juris Doctorate, 1988. Ms. Murphy has been a family law attorney for over 30 years and has limited her practice solely to family law since 1988. On October 1, 2023, Kathleen accepted a position as a senior attorney with Triangle Divorce Lawyers and she can be reached at [email protected]. Ms. Murphy is a member of the North Carolina State Bar, North Carolina Bar Association, NCBA Family Law Section Member, is a trained Family Financial Mediator and a trained Child's Advocate. Ms. Murphy is married to a City of Raleigh Firefighter and has four children, three daughters and a son. Ms. Murphy is a contributor to an International podcast. Crime Stories with Nancy Grace is broadcasted daily and you can hear Ms. Murphy's comments on cases involving victims of family crimes and the impact of family court.