Is the child currently at risk of serious physical injury or of one parent moving away with them in violation of court order?
In part 1 of this post, we discussed the situation that can arise during or following a divorce when one parent believes their child may be in danger when with the other parent. The concerned parent can file a request in a Florida circuit court for an emergency hearing or emergency relief to protect their child.
In this part 2, we continue the discussion from part 1 about parental rights and emergency conditions. There, we talked about an administrative order in Palm Beach County courts as an example of the standards to be met in seeking emergency relief.
Court relief without notice to the other party
The parent requesting the fast-tracked, emergency hearing is not required to give notice of hearing to the other parent allegedly involved in the child’s emergency circumstances, so long as the petitioning parent alleges a true emergency. An ex-parte order is one the court issues (such as for a change in the parenting plan regarding parenting time or custody, or not to remove the child from the jurisdiction) without notice to the other party or their appearance at the hearing because of potentially imminent danger to the child.
Parents have significant constitutional rights to raise their children, so restricting access to a child may not be done lightly. Unless it is truly an emergency, notice and hearing are mandatory to comply with due process of law. The rub between parental rights and child protection in these cases has resulted in appeals after a parent gets an ex-parte order, questioning on appeal whether an emergency really existed and if not, whether any resulting order violated the appealing parent’s right to notice and hearing.
What is a true emergency?
It is easier to find Florida cases in which the judge found that an emergency did NOT exist than the opposite finding. Examples of emergency hearing requests that courts ultimately found not to have been actual emergencies include:
- Trying to enroll a child in a new school
- Asking for long-distance visitation on specific dates without an important reason
- Requesting that a parent get temporary custody to move with the child to a different state for a lucrative job
- Interfering with visitation
Legal advice important
An experienced Florida family lawyer can represent and advocate for a parent seeking emergency relief for their children. The attorney will be able to carefully gather and present evidence of emergency – the threshold for the judge to consider providing relief in an expedited hearing.
On the other side, legal counsel can protect the rights of the parent facing allegations that could constitute an emergency for the child, including potentially appealing an ex-parte order or a change in custody and visitation provisions from those in an existing parenting plan.