Subject: Authority of Superior Court to enter temporary, ex parte
order of child custody
Preamble: Conn. Gen. Stat. Section 46b-56 authorizes the Superior Court to issue orders relative to the custody of children. Subsection (f) of the statute provides that “when the court is not sitting, any judge of the court may make any order in the cause which thecourt might make under this section, including orders of injunction, prior to any action in the cause by the court”. Anecdotally, applications for ex parte custody orders appear to be very commonly filed. Some judges believe that there is no present authority for the issuance of such ex parte orders. Others believe that subsection (f) may provide that authority, but still lacks sufficient standards to guide a judge reviewing such an
The following is a draft amendment to that statute addressing both of these concerns.
Section 46b-56( ). Authority of Superior Court to enter order of temporary custody of a child Application. Court orders. Duration. Expedited hearing for continuance of order.
( ) An applicant for custody under this section may make an application to the Superior Court for an emergency order of custody under this section.
( ) The application shall be accompanied by an affidavit made under oath which includes a brief statement of the conditions requiring an emergency order. Upon receipt of the application the court shall order that a hearing on the application be held not laterthan fourteen days from the date of the order. The court, in its discretion, may make such orders as it deems appropriate for the protection of the child as the court sees fit. Such order may include temporary child custody or visitation rights and such relief may
include but is not limited to an order enjoining the respondent from
(1) removing the child from the state of Connecticut;
(2) interfering with the applicant’s custody of the child;
(3) interfering with the child’s educational program;
or (4) such further orders as the court determines to be in the child’s best interest.
If an applicant alleges an immediate and present physical or psychological danger to the child, the court may issue
an ex parte order granting such relief as it deems appropriate and may, in its discretion, refer the contents of the affidavit to the Department of Children and Families for investigation. If a postponement of a hearing on the application is requested by either
party and granted, the order shall not be continued except upon agreement of the parties or by order of the court for good cause shown.
( ) The applicant shall cause notice of the hearing pursuant to subsection ( ) of this section and a copy of the application and the applicant's affidavit of this section to be served on the respondent not less than five days before the hearing. In the case of anyapplication seeking an ex parte order, the affiant shall also disclose what steps were taken to inform the respondent of the request if any, or, if none, the reasons why the court should nonetheless consider such application on an ex parte basis.