FOR PUBLICATION

ATTORNEY FOR APPELLANT:    

DAVID W. STONE, IV    
Stone Law Office & Legal Research    
Anderson, Indiana

IN RE THE MARRIAGE OF          )
DARYL ALEXANDER,                    )
                                    )
    Appellant-Respondent,           )
                                    )
        vs.                         )    No. 48A05-9803-CV-163
                                    )
KIMBERLY D. (ALEXANDER              ) COLE,    )
                                    )
    Appellee-Petitioner.            )

                                

STATON, Judge

    At the outset we observe that Kimberly has not filed an appellee's brief. In this situation, we do not undertake the burden of developing arguments for the appellee. White v. Porter County Treasurer, 671 N.E.2d 1196, 1197 (Ind. Ct. App. 1996). Instead we apply a less stringent standard of review with respect to showings of reversible error, and we may reverse the trial court if the appellant can establish prima facie error. Id. In this context, prima facie error is defined as "at first sight, on first appearance, or on the face of it." Id. (quoting Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985)).
    Here, Daryl contends the trial court erred when it denied his motion for relief for judgment under Ind. Trial Rule 60(B)(6) which provides:
    On motion and upon such terms as are just the court may relieve a party . . . from an entry of default, final order or final judgment, including a judgment by default for the following reasons: . . .

        (6) the judgment is void[.]

Daryl first argues the modification order is void because the special judge rather than the circuit court judge had jurisdiction over Kimberly's petition. We agree that the special judge had not relinquished his continuing jurisdiction.See footnote 1 However, we need not further examine this

argument because the record clearly shows a Child in Need of Services (CHINS) proceeding was filed prior to the filing of Kimberly's petition.
    This is significant because the juvenile court has exclusive original jurisdiction in proceedings in which a child, including a child of divorced parents, is alleged to be a child in need of services. Ind. Code § 31-30-1-1 (Supp. 1997). The juvenile court retains that jurisdiction until:
    (1) the child becomes twenty-one (21) years of age, unless the court discharges the child and the child's parent, guardian, or custodian at an earlier time; or

    (2) guardianship of the child is awarded to the department of correction.

Ind. Code § 31-30-2-1 (Supp. 1997). Custody determinations are collateral to the juvenile court's jurisdiction. Hemingway v. Sandoe, 676 N.E.2d 368, 371 (Ind. Ct. App. 1997); see Ind. Code § 31-34-20-1 (Supp. 1997) (juvenile court has jurisdiction to enter a dispositional decree which, inter alia, removes the child from the child's home and places the child in another home). Consequently, in this case, the juvenile court had jurisdiction over custody decisions until that court discharged the parties or transferred the cause. See P.B. v. T.D., 504 N.E.2d 1042 (Ind. Ct. App. 1987) (superior court had no continuing jurisdiction of custody matters once a CHINS proceeding was initiated in juvenile court), modified on rehearing, 507 N.E.2d 992 (Ind. Ct. App. 1987); Guardianship of Bramblett v. Grant County Dep't of Pub. Welfare, 495 N.E.2d 798 (Ind. Ct. App. 1986).

    We have acknowledged that a judgment may be void for a court's lack of authority to render the particular judgment even though the court may have had jurisdiction over the subject matter and the parties. Beanblossom v. State, 637 N.E.2d 1345, 1349 (Ind. Ct. App. 1994), trans. denied. Here, the trial court was without authority to make a custody determination, and the order purporting to do so is void. Daryl has shown prima facie error in this regard.
    As a separate ground for reversal, Daryl argues the custody order is void because he was denied his right to notice and an opportunity to present evidence. Without determining whether the failure to give notice rendered the order void pursuant to T.R. 60(B)(6) or merely voidable under T.R. 60(B)(8), we address Daryl's concerns which may arise upon remand.
    An opportunity to be heard is essential before a parent can be deprived of custody. Jendreas v. Jendreas, 664 N.E.2d 367, 370 (Ind. Ct. App. 1996), trans. denied. In addition, the relevant statutes contemplate an evidentiary hearing to determine whether there was a substantial change in at least one of the factors relevant to the children's best interests and whether modification would in fact be in the children's best interests. Joe v. Lebow, 670 N.E.2d 9, 22-23 (Ind. Ct. App. 1996); see Ind. Code § 31-17-2-21 (Supp. 1997) and Ind. Code § 31-17-2-8 (Supp. 1997). Accordingly, an ex parte order is an extreme remedy which is intended to be temporary in nature. Wilcox v. Wilcox, 635 N.E.2d 1131, 1137 (Ind. Ct. App. 1994). In the face of an emergency, the trial court balances the welfare of the children against the custodial parent's right to continued custody. Id.

    In this case, Kimberly did not show imminent harm justifying an ex parte change in legal custody. Under these circumstances, after Kimberly filed her petition for modification, the trial court erred by failing to: (1) set the cause for hearing; (2) give appropriate notice to the parties; and (3) conduct a full hearing on the evidence as to change of custody. In re Marriage of Henderson, 453 N.E.2d 310, 313 (Ind. Ct. App. 1983).
    We conclude that the September 25, 1997 order transferring legal custody of the children to Kimberly is void due to the court's lack of authority to make a custody determination during the pending CHINS action. We reverse and remand with instructions to vacate the September 25th order and for future proceedings consistent with this opinion.
    Reversed.
KIRSCH, J., and MATTINGLY, J., concur.

when the special judge "ceases to act." The record does not indicate that the special judge had become unavailable under T.R. 79(L) or that he had ceased to act under T.R. 79(I).

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