If you feel that your child is at risk of immediate and irreparable harm, Delaware Family Court can grant emergency custody to a parent under emergency circumstances by filing a Motion and Affidavit for Emergency Ex Parte (without notice to the other party) Order or a Motion for Interim (Temporary) Relief or a Protection from Abuse.


What is immediate and irreparable harm?

This concept is often confused with, “general conflict”, with the other parent. Circumstances surrounding immediate and irreparable harm must be severe. Below is how the court will define these terms:

  • Harm: loss of or damage to a person’s right, property, or physical or mental wellbeing.
  • Immediate: Action is or must be taken either instantly or without any considerable loss of time
  • Irreparable: Harm is impossible to repair, remedy, or undo. Typical irreparable harm is not remediable by monetary compensation.


Situations including immediate and irreparable harm can be

  • Certain pending criminal charges involving a child,
  • Department of Family Services (DFS) investigation,
  • Lack of stable housing
  • Enrollment in an in-patient drug or alcohol program,
  • Current or ongoing physical or sexual abuse,
  • Neglect,
  • Medical Emergencies,
  • Driving under the influence with a child,
  • Residing with a registered sex offender.


Situations which are not considered to be  immediate and irreparable harm include:

  • Disagreeing with a spouse or not approving of their new spouse,
  • Missed child support payments,
  • Late to pickups/drop-offs,
  • Minor and common childhood illnesses,
  • Significant amount of time has passed since the event occurred with no indication that the harm will reoccur.


What do I need to file?

Filing for emergency custody of your child requires the Court to have entered a custody order. As an emergency filing, you are asking for this order to be modified or ask the Court to establish a custody order. If you have a previous custody order in place, you will need to file a Petition to Modify Custody. If you want a custody order to be established by the Court, you will need to file a Petition for Custody. Both petitions must be filed with a Custody, Visitation, and Guardianship Disclosure Report and a Custody Separate Statement and Information Sheet. Depending on your situation, additional forms are necessary when filing. Please check the Family Court website or Child Custody Instructions Packet (link).

A petition for custody or a petition to modify custody is considered a civil filing and costs $90 to file plus an additional $10 charge for the Court Security Assessment.


How do I get emergency custody?

To gain emergency custody, you will need to file a motion with the Family Court for emergency custody. The emergency motions require a petition. This petition can include a Petition for Custody, Petition for PFA, Petition for Guardianship, etc.

Once determined which petition to file, you can file a Motion and Affidavit for an Emergency Ex Parte Order. The emergency motion requires:

1) why the Court should proceed without giving notice to the other parent;

2) that immediate and irreparable harm will result if the motion is not granted and explain what the immediate and irreparable harm is.

After reviewing the emergency motion, the Court can grant, deny and/or schedule the matter for a hearing. The Court usually rules on emergency motions the same day. If an emergency motion is granted, a full hearing must be held within fifteen (15) days to provide the opposing party the opportunity to be heard.

You can also file a Motion for Interim Relief in which the Court can grant a temporary order that would be in place until a full hearing can be held. The Motion for Interim Relief will not be granted until the opposing party has been served with the Motion and given time to respond to it. This can take days or weeks.

You can also request a Protection from Abuse (PFA) order, commonly known as a restraining order, for yourself and your child if domestic violence or abuse has occurred or is very likely to occur. A PFA can address custody on a temporary basis, usually up to one (1) year. A PFA can be requested by filing a Petition for Order of Protection from Abuse and Information Sheet.

If you believe you are in immediate danger of abuse, you may request an emergency hearing the same day. An emergency PFA requires an explanation that immediate and irreparable harm will result if the emergency relief is not granted and an explanation of what the immediate and irreparable harm is. Depending on your situation, additional forms are necessary when filing an emergency PFA.

A PFA with a PFA request to address custody can be filed alone or with a petition for custody or petition to modify custody. There is never a cost for seeking a PFA, including when filing with a petition. The Family Court has created an information packet to help understand custody (link) and PFA’s (link). Be sure to check back, we will be writing on PFAs in the future.


Contact Us Today 

This post is not meant to be exhaustive, but a brief overview of maneuvering through Family Court. The process of filing for emergency custody can add additional stress to an already tough situation. Contact WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com, to connect with an experienced attorney in your area who can guide you through the process.


Vernon Vassallo

Vernon Vassallo

Associate Attorney

Vernon Vassallo joined WhitbeckBennett after serving as a Judicial Law Clerk to Judge Natalie J. Haskins and Judge Felice G. Kerr of Delaware Family Court. Vernon has deep roots in the Delaware community, graduated from Delaware Law School in 2021, working for the Grand Opera House, volunteering with a low-income tax clinic in Delaware, and serving the Office of United States Senator Thomas R. Carper. To learn more about Mr. Vassallo, click here.