What is Emergency Custody in Indiana?

November 15, 2022

By Keffer Hirschauer LLP

What is Emergency Custody in Indiana? 

Emergency custody in Indiana is a situation where a child is removed from their home after it’s no longer deemed safe for them to be there. Once the child has been removed, they are placed in protective emergency custody until a hearing can be held. Typically, the hearing is held within 48 hours of the order being made, but that excludes weekends and legal holidays. 

It should be noted, however, that term, “emergency custody in Indiana,” is often confused with emergency motions to modify parenting time. Emergency motions are used in situations where time is of the essence and a parent needs to petition the court for an expedited modification of parenting time in Indiana. For the purposes of education, this article will address both topics.  

If you’re in a situation where a child has been removed from your home, or you would like to file an emergency motion to modify parenting time in Indiana, you’ll need the help of an experienced Indiana child custody attorney. The Indianapolis family law attorneys at Keffer Hirschauer have extensive experience in this area of Indiana law and stand ready to help protect you and your family. If you’d like to speak with an attorney today, call us at 317-857-0160 or complete our online contact form to schedule a free consultation.  

Emergency Custody in Indiana 

Emergency custody happens when a child is not safe in their home and is therefore removed from the home. The child is placed in protective emergency custody awaiting an initial hearing within 48 hours, excluding Saturdays, Sundays and certain legal holidays. 

Emergency custody in Indiana occurs when, prior to the completion of a child abuse investigation, the law enforcement agency or the Indiana Department of Child Services believes that removal of the child is necessary to protect them from further abuse or neglect. Following the removal, per Indiana Code 31-33-8-8, the department shall make a complete written report of their assessment, as should the law enforcement agency (if they were involved).  

Indiana Code 31-34-4 details the law surrounding the temporary placement of a child taken into emergency custody in Indiana. This statute states that when a court orders the out-of-home placement of a child that removed from their home, the department responsible for that placement must first consider placing the child with a suitable and willing relative or their de-facto guardian before considering any other out-of-home placement. Per Indiana Code 31-34-4-2, if a suitable and willing relative or de-facto guardian is able to take placement of the child, the department must then complete an evaluation based on a home visit and conduct a criminal background check on all individuals residing in the home. 

If the person the department is considering placing the child with has committed an act of child abuse or neglect, been convicted of a nonwaivable offense defined in Indiana Code 31-9-2-84.8, or had a juvenile adjudication for an act that would be a non-waivable offense if committed by an adult, the child cannot be placed in their home. However, when considering placement of a child needing emergency custody in Indiana, the department may approve an out-of-home placement if five years have passed since the person committed an act resulting in a report of child abuse or neglect, or been convicted of:  

Furthermore, the statute states that if the person with whom the child may be placed committed a nonwaivable offense that if committed by an adult would be a felony, but the person’s commission of the act is not relevant to their present ability to care for the child, the child can be placed under their care if it’s in the child’s best interest.  

Legal Rights of Parents, Guardians and Custodians, per Indiana Code 31-34-4-6 

As stated in Indiana Code 31-34-4-6, the department shall submit written information, at the time the child is taken into custody or the department files a petition alleging that the child is a child in need of services (whichever occurs earlier), to a parent, custodian, or guardian of a child who is alleged to be abused or neglected regarding their following legal rights: 

  • The right to have a detention hearing held by a court within forty-eight (48) hours after the child’s removal from the home and to request return of the child at the hearing. 
  • The right to be represented by an attorney, cross-examine witnesses; and present evidence on the parent’s, custodian’s, or guardian’s own behalf at each court proceeding on a petition alleging that the child is a child in need of services.  
  • The parent, guardian, or custodian has the right to be represented by a court appointed attorney 
  • The right not to make statements that incriminate the parent, custodian, or guardian and that an incriminating statement may be used during a court proceeding on a petition alleging that the child is a child in need of services. 
  • The right to request to have the case reviewed by the child protection team 
  • The right to be advised that a petition to terminate the parent-child relationship must be filed whenever a child has been removed from the child’s parent and has been under the supervision of the department for at least fifteen (15) months of the most recent twenty-two (22) months. 

If your child has been removed from your home by the Indiana Department of Child Services, you’ll need a skilled Indiana DCS attorney with experience addressing civil and criminal investigations involving parents and children. Contact the attorneys at Keffer Hirschauer LLP today if you have questions or believe your parental, constitutional, or criminal rights have been violated. Our child custody lawyers in Indianapolis stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their specific case. Act now and contact us today at 317-857-0160 or complete our online contact form to schedule a free consultation. 

Emergency Motions to Modify Parenting Time 

Emergency custody in Indiana is often confused with an emergency motion to modify parenting time (otherwise known as custody). These motions are similar to regular modifications of parenting time but are only used when circumstances require the modification to be expedited. For example, if the custodial parent tells the non-custodial parent that they are moving out of the country with the children and that the non-custodial person will no longer be able to see them, an emergency motion to modify parenting time is warranted.  

The over-arching laws governing the modification of parenting time in Indiana can be found in Indiana Code 31-17-4-2, which states that “the court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.” The law, however, clarifies that “the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.”  

For the most part, Indiana Courts are not inclined to make a modification to parenting time unless it endangers the child’s safety or impairs their emotional development. Custodial parents seeking to modify the parenting time of a non-custodial parent will need to demonstrate that since the non-custodial parent’s behavior has created a danger to the child and/or has a negative impact on the child’s emotional development. Depending on the facts, a modified court order could result in supervised or reduced parenting time, parenting time dependent upon completion of counseling, rehabilitation, or abstinence from drugs and alcohol.  

Reduction or Elimination of Parenting Time in Indiana

In situations where time is of the essence, a parent or guardian can file what is known as an emergency motion to modify custody to expedite the modification process. However, to accomplish this request, the petitioner must establish two separate grounds. First, the modification must be in the best interest of the child. Secondly, they must demonstrate that there has been a substantial change in circumstances since the last child custody order was made.  

Applicable substantial changes may include the age/sex of the child; the wishes of the parents or child; changes to the child’s school, home or community; changes to the interactions or interrelationships between the child and their parents, siblings or other people who play a large role in their life. Other changes that may be considered include the child’s adjustment to their school, home or community; the mental and physical health of all individuals involved in the order; and a pattern of domestic or family violence by either parent.  

If the court determines, upon review of the request, that an emergency does exist, that a modification would be in the best interest of the child, and a substantial change to one of the factors listed above has occurred, the court may grant the motion ex parte. This means that the order would be granted on a temporary basis prior to notice being served to the opposing party and an emergency hearing is set. However, emergency custody in Indiana is rarely obtained on an ex parte basis. More commonly, courts will set a hearing and require the petitioner to serve the other parent.  

The information provided in this section should be understood as a basic explainer, as emergency motions to modify custody are exceedingly rare and each motion is unique to the circumstances of the case. To better understand the circumstances of your own situation, you should speak with an Indiana child custody attorney who has experience with emergency custody in Indiana. 

Need to Speak with an Attorney about Emergency Custody in Indiana? 

Emergency custody in Indiana is stressful for everyone involved, especially for the children. Whether your child has been taken from the home by the Department of Child Services, or you’d like to file an emergency motion to modify parenting time, the Indianapolis family law attorneys at Keffer Hirschauer LLP are ready to help you. Our team fully understands the emotional and legal difficulties you face. We can provide compassionate advocacy along with assertive representation to protect your loved ones, as well as your rights as a parent. Contact us today at 317-857-0160 or complete our online contact form to schedule a free consultation with an experienced child custody attorney.  

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