How to Get Emergency Custody in Florida and What to Watch Out For
One very common issue that divorce attorneys in Florida deal with is the situation where emergency action must be taken in order to protect the physical or emotional safety of children by seeking emergency custody. There are many different terms that can describe this process, including an emergency motion for custody, temporary emergency relief, emergency motion to suspend contact, etc. Regardless of what you call it, there are a few common threads that will be present in every situation that a child custody lawyer in Florida can help with. Important: if someone is in imminent danger, you should contact law enforcement immediately. After contacting them, contact us.
- Temporary emergency custody
- What are the 2 types of emergency motions in Florida?
- What do you need to show to get emergency child custody?
- How to Get Emergency Child Custody in Florida
- Why should you use emergency motions for custody sparingly?
Temporary Emergency Custody
Florida law § 61.517 Temporary emergency jurisdiction begins with:
“A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” (source)
Therefore, the main reasons courts in Florida allow emergency custody typically include:
- Child abandonment
- Child abuse or mistreatment (actual or threatened)
- Domestic violence (actual or threatened) to a sibling or parent of the child
Two Types of Emergency Motions in Florida
Florida courts generally grant two types of emergency motions: ex-parte motions and regular emergency motions with notice to the other side.
1. Ex-Parte Motions
An ex-parte emergency motion is one that is filed and sent directly to the judge without providing notice to the other party.
Some examples of instances where an ex-parte emergency motion may be appropriate are where there is a high risk for a parent to remove a child from the jurisdiction if they become aware of the motion being filed, or if immediate harm is a possibility for a child if the other parent becomes aware that a motion has been filed.
Ex-parte emergency pleadings are rare because there are few situations that are so serious that they rise to the level where the other party should not receive notice of the motion, the hearing, or the fact that the judge is considering the motion without having a chance to be heard or present their side of the story.
2. Regular Emergency Motions With Notice to the Other Side
The second type of emergency motion is a normal emergency motion with notice to the other party. This is a more traditional type of motion that is served on the other party and offers the other party an opportunity to make objections, present arguments, and put on evidence/witness testimony in their defense.
What You Need to Show To Get Emergency Custody
Not only is it important for child custody attorneys to identify what types of fact scenarios will rise to this level, but attorneys must also understand how to properly talk about and describe the situation when they write emergency pleadings to be filed with the Court.
This is because the judge is going to usually make a decision whether or not to grant an emergency motion based on a quick reading of the motion and not taking an argument from either parent.
For this reason, a poorly-written emergency motion or one that is written in too quickly will have a lower chance of success due to the fact that it may leave out important facts that the judge needs to know in order to exercise their emergency powers.
How to Get Emergency Child Custody in Florida
Important: if someone is in imminent danger, you should contact law enforcement immediately.
In Florida, the most common course of events for a party seeking an emergency custody order is as follows:
- First, you will start by contacting an experienced family lawyer in Florida. The attorney will evaluate your case to understand what has taken place and how they should describe the situation when filing the emergency pleadings with the Court. The outcome of your requests relies heavily on a well-written emergency motion.
- Second, the motion is filed and a copy is delivered by email or by hand to the judge’s office.
- Third, the judge will review the motion on the same day and make an immediate determination as to whether the allegations contained in the emergency motion rise to the level that would permit the matter to be heard on an emergency basis.
- Lastly, if the judge decides an emergency custody motion is warranted, they will issue a temporary order granting the requested relief and set an expedited hearing.
Use Emergency Motions for Custody Sparingly
Attorneys must reserve filing for emergency custody in Florida for only the most extremely rare situations. This is because Florida Family Court judges keep track of which attorneys file an excessive number of emergency motions and which attorneys file them only rarely.
Judges will admit to you that attorneys who file emergency motions excessively usually do not receive the same level of seriousness as do lawyers who the judge knows only file this type of pleading in true emergency situations.
Suggested Next Steps
If you are going through a divorce near Orlando and think emergency custody might be your next step, contact our office and speak to a divorce law attorney today. Our family law attorneys can advise you as to whether your situation rises to the level of a true emergency in the eyes of the court.
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Sean Smallwood is an Orlando divorce attorney for the law firm Sean Smallwood, Orlando Divorce & Family Law P.A. where he represents clients in all areas of family law and divorce. 100% of the practice is devoted to family law. As an attorney in Orlando, he has helped many families with a wide variety of family law cases including Divorce, Child Custody, Child Support, and many other issues.