What is an emergency in a family case?

It’s a Friday night and the telephone rings. On the other end of line is a clearly upset parent. They are telling you how their father/mother of their child has just put them [the child] in danger.  They want you to act fast. Call the judge, file a motion. Do something.  Do something now.

This scenario is an all-too-common occurrence in family cases, particular high conflict ones marked by an extensive amount of litigation.  The question for attorneys, mental health professionals, Guardian Ad Litems and other participants in the case is what constitutes an emergency?

A. Definition of an “emergency”

Florida Chapter 39 sets forth definitions of abuse, abandonment and neglect.  It’s safe to say that if a child finds themselves in a situation which falls into one of these categories (actually or are at imminent risk of same), it would be an emergency due to the very definition of the circumstances described.  The circumstances addressed in Chapter 39 normally form the basis for emergency removals of children by Department of Children and Families and other interventions such as the filing of Petitions for Dependency and/or Termination of Parental Rights.

But are the Chapter 39 definitions of abuse, abandonment and neglect transferable to situations which occur in family law cases filed in Chapter 61, 742 and 751? How can we tell if the situation is a true emergency needing immediate intervention or while there is concern, the immediacy is not there?

First, family law practitioners should be familiar with the procedure in their jurisdictions on how emergency motions are handled. Most of the time, the jurisdiction’s emergency motion procedures will have a definition of what constitutes an emergency in the context of a family case.  For example, in Palm Beach there are administrative orders which define an emergency as “an imminent risk of substantial harm to a minor child or a child is about to be illegally removed from the Court’s jurisdiction.”   Throughout the jurisdictions in Florida, administrative orders normally address risk and the imminence of risk to the child as it relates to filing emergency motions. Florida Courts hold that immediate risk to the welfare of the child constitutes an emergency. However, the particular situation should be assessed using the jurisdiction’s definition of an “emergency motion” to determine if filing for emergency relief is appropriate. If the situation falls within the parameters set by the emergency motion procedures and definitions, then one should proceed to ask for immediate judicial intervention and alert all parties.

Another valuable practice tip is to consult with a mental health professional who is involved with parties about the situation in question.  Bear in mind that a mental health professional may consider the circumstances to be an emergency even if the jurisdiction’s administrative order does not.  This may trigger a reporting requirement to the Department of Children and Families or law enforcement under state statutes such as Chapter 39.  A qualified mental health professional can also serve as valuable source of information to a Court to explain why certain behaviors constitute an emergency even if there may no indication of immediate physical danger.

B. Emergency Ex-Parte Orders

Courts in Florida have the authority to issue an order without a hearing known as an “ex-parte” order based on the sworn to allegations contained in an emergency motion. However, as the Court held in Wilson v. Wilson, 173 So. 3d 1136, 1138 (Fla. 3d DCA 2015) (citing Ashby v. Murray, 113 So. 3d 951, 954 (Fla. 5th DCA 2013), “while the Court has authority to grant emergency motions on an ex-parte basis under extraordinary circumstances the Court is required to hold an evidentiary hearing at the earliest opportunity.” Parties have a right in Florida to present argument and evidence as to the allegations in the emergency motion before the Court. Therefore, even if an ex-parte order is issued, the parties will have to present themselves, their evidence and witnesses at a formal hearing before the Court.  Hearings on emergency motions are required to be noticed with a party’s being served with same. The failure to provide notice as stated by the Court in Loudermilk v Loudermilk, 693 So. 2d 666, 667-68 (Fla. 2d DCA 1997) “failure to give notice of a hearing to the opposing party absent a true emergency deprives the opposing party of its right to procedural due process.”

C. Conclusion

Practitioners should take a step back and look at the situation in its entirety.  While the conduct of a parent may be concerning, such as talking to themselves or the children in a manner that may seem bizarre or frightening, it may not qualify as an emergency.  Nonetheless, the court and all parties should be made aware of the circumstances and hearing held as soon as possible such as through the filing of an Urgent Motion. Alternatively, if there is a Guardian Ad Litem assigned to the case, the Guardian should be alerted to the situation so they may inform the Court of the concern.   Always remember to get all the facts of the situation.  Filing an emergency motion in some jurisdictions without it meeting the definition of an emergency may result in sanctions against the moving party such as an award of attorney’s fees to the other party for having to defend against the allegations.  Moreover, a parent may lose credibility before a court due to what may be perceived as a filing labeled an “emergency” which appears to contain allegations which do not on their face demonstrate an imminent risk to the child but rather appear to be designed to harass and/or annoy the other parent.

Emergency motions should be used only when necessary and treated with care. A careful assessment of the circumstances can help practitioners and parents make informed decisions about how to address situations of concern involving children and avoid unnecessary, frivolous litigation.