Going to court to resolve legal issues, especially in divorce and child custody cases, can take months or even years to get resolved. In most cases even getting a hearing in front of a judge can take several weeks to several months. However if the child is in imminent danger from a parent, the other parent can file an emergency motion with the court. When the court receives the motion, they have the ability to take immediate action and can even prevent the other parent from having contact with the child or children until a hearing is held within a week or two.
Parents have a different idea of what is an emergency than lawyers and, sometimes, lawyers have a different idea of what is an emergency than judges have. One reason is because the emergency motion can result in one parent being denied due process (the right to present their side to the judge) before the emergency hearing.
So, what is an emergency situation in Florida where the court will take immediate action without having a hearing first? Well, a true emergency applies in very limited circumstances, such as when a child suffers from physical harm or is about to be improperly removed from Florida. This leads to another set of questions, what is or is not physical harm and what is being improperly removed from Florida mean?
Spanking and corporal punishment by a parent is legal in Florida. In order for a judge to grant an emergency motion citing physical harm to the child by a parent, the other parent must allege something more than spanking or corporal punishment.
Married parents, prior to a divorce being filed, are equal parents and either can remove them from the state of Florida. However, once a divorce petition is filed and served on the other parent, neither parent can remove the child from Florida without permission of the other parent or an order of the court. So, if a married parent moves the child out of state prior to being served with divorce papers, it does not rise to the level of an emergency. However, if they move the child out of state after being served with divorce papers, it very well may be an emergency situation.
Unmarried biological mothers are considered to have sole parental responsibility and 100% timesharing until the biological father files a petition in court asking to be given parental responsibility and timesharing. So, until a petition is filed in court asking to make the biological father the legal father and give him parental responsibility or timesharing, then a biological mother can move the child out of state. This is true even if the biological father has been ordered to pay child support, so long as the court did not give him parental responsibility or timesharing. After a petition for this has been filed, and served on the father or mother, neither party may move out of the state without permission of the other parent or an order of the court. In those situations, it very well may be an emergency situation.
If you have any questions regarding Emergency Motions in child custody situations, please call the Law Office of Andrew G. Storie at (407) 838-0887.