Where is the Emergency?

emergency motion

By Attorney Jennifer Schulte:  What should you do when your ex refuses to return the children to you after their timesharing?  What do you do when your ex takes away the child’s personal cell phone while at their residence?  What do you do when your ex calls you and tells you they have left the county or state with your child and refuse to return the child?  What do you do when your ex withdraws all funds from your joint back account?

Would you consider the above an emergency?  Would the attorney you interview consider the above an emergency?  More importantly, would the judge consider the above an emergency?

Emergency Pleadings are tricky for an attorney.  What we may consider an ethical or moral emergency might not be an emergency in the judge’s head.  As attorneys we have to carefully review the facts as given to us by our client and figure out whether the situation is either an emergency or an urgent need.

Judges throughout Central Florida have clearly identified what they consider an emergency:

1. If your ex removes the child from the state or country without prior notice/permission (especially to a non-Hague country – a country that has signed agreements to return children).

2. If your ex has placed the child in danger or abandoned the child (i.e., left a 6 year old home alone or used drugs/firearm in the presence of the child).

3. If your ex sold the house you and the child are residing in and you are about to be put out on the street.

4. there are multiple notices on your door setting a date to turn off the water, power, or to evict you and your children.

Other than the above and a few other scenarios, most of what our tearful clients tell us falls under the next category, which is really an Urgent Need.  “Urgent Needs” justify us filing a Motion and request for an expedited hearing, rather than an Emergency Motion.

Financial-only situations are almost always a “Urgent Need,” rather than an emergency. Many judges will review an emergency motion the same day it is filed.  That means, if an attorney files an emergency motion or petition related to a financial hardship  (Urgent Need – Not an Emergency) then most likely the Judge will deny the motion/petition and not be too pleased with that attorney and client.  Judges receive “emergency” motions all the time that are inappropriately filed.  A certain judge in Orange County likes to tell the attorneys that he once received an “emergency” motion related to a parent wanting the child to spend Halloween with her.  That judge still remembered that inappropriately filed motion years later and had a very clear image of the attorney that improperly filed the emergency motion. It is the attorney’s responsibility to appropriately identify a legal emergency and advise the client appropriately.  This is not always easy to do.  It can be quite difficult and frustrating to have to explain to a client that an Emergency is not defined as a parent that did not return a child Sunday night per the timesharing agreement.

The reason for filing an emergency pleading is to state to the judge that there is NO Available recourse to the complaining party and the court must address the emergency circumstance in order to keep/make the child and/or parent safe.  For example, if the court does not immediately issue a Child Pick Up Order then the child will be removed from the State of Florida and taken to a non-Hague country from which we may not be able to retrieve the child.  Most emergency pleadings require the client to swear to the truth and authenticity of the written statements.  The attorney must certify whether the motion is being provided to the other side or ex parte (only to the court) and why providing a copy to the other side would aggravate the injury or harm.

Recently an opposing counsel filed a lengthy “emergency” pleading in order to attempt to keep a minor child in the State of Florida despite the fact that the child’s residence is in another state.  We are waiting on the Judge to determine the appropriate course of action.  The fact that this “emergency” pleading was filed weeks ago and still has not been ruled on is a good indication that the Court does not find the contents therein to equate to a legal emergency.

Keep your “Urgent Needs” and your “Emergencies” separate and well-defined and you will experience more success with your attorney and the court.


Jennifer Schulte is an Orlando, Florida custody attorney. She practices divorce, custody, and criminal law in Orange County, Florida.

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