Yes you would have grounds to file for emergency custody if you have already begun our separation. I’m not sure how that will work with the custody arrangement you have but if you believe that she is unstable then it is your duty as a parent to do what is best for your children. Being the primary caregiver is a plus on your side. Normally, the primary caregiver retains custody…but again, I’m not sure how that will affect your “bird’s nest custody” other than your spouse may have to stay somewhere other than the home while in NC…
The arrangement you have now may not work but it’s my opinion that you have a good chance of retaining custody since her employment is out of state.

Can I file for the temporary order for emergency custody on my own? Where do I get the proper paperwork?

I do suggest consulting an attorney prior to filing for custody. There are forms on the home site here but I am not certain that you can just print them for use. I believe that you may be able to contact the local clerk of court to see where you can obtain the proper paperwork but I do suggest having an attorney look over your situation.

In order to file for emergency custody you must have reason to believe that your children are at an immediate risk of serious irreparable harm, or physical or emotional injury. If you believe she is an actual danger to the children then emergency custody may be the best avenue to take. Based only on what you have written, I do not believe emergency custody would be granted, however there may be more facts that I am not aware of. Your best bet is to schedule an initial consultation with an attorney and review the specific facts of your case.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

My wife and I have been discussing our divorce for several months now. Although we have been living in North Carolina for over a year, she travels to Northern Virginia every Thursday and stays until late Saturday/early Sunday to continue her previous job.

Last week she agreed to begin our legal separation and to a ‘bird’s nest custody’ arrangement. This arrangement seemed to suit our needs very well since she was already gone half the week and our three children (14, 13, and 10) are used to her being gone during this time. The only real change would be I was moving out during the days she was home. She verbally agreed to this, then came home this weekend and changed her mind, stating she was going to sue for primary/sole custody.

I believe her to be quite unstable, eg, she stated several weeks ago she was going to “start praying for her own death, so the children and I could be happy” - and then increased her life insurance policy.

I am wondering if I have grounds to file for emergency custody, and how heavily it will weigh in the long run that I have been the primary caregiver for my children since our relocation to North Carolina since she chose to continue her employment 400 miles away.

Thank you for your time.
Tim G.