What Is an Emergency Motion?

Certain events warrant the use of immediate legal action.

In life, unexpected emergencies arise that require prompt action, and the same general principle holds true in certain family law scenarios. When certain emergency family law situations arise, an emergency motion may be necessary.

What Is an Emergency Motion?

Emergency motions are used by Florida courts to promptly respond to family situations that demand immediate legal attention. Parties are allowed to seek an emergency motion in a number of different family law situations.

Situations When an Emergency Motion May Be Warranted

Child emergencies are one of the most important justifications for an emergency motion. For the purposes of an emergency motion, Florida defines a child emergency as a "matter of imminent abuse, neglect or abandonment affecting the health, safety or welfare of a child."

Additional occurrences that should be used to request an emergency motion include a parent being arrested for drug use/domestic violence, domestic violence has occurred or a parent has been involuntarily committed under the Baker Act.

These are typically the most common instances when an emergency motion should be used in a family law context.

"Ex Parte" Petitions

A key concept to understand about emergency motions is that they often result in what is referred to as "ex parte" petitions. Ex parte petitions simply mean petitions that are reviewed and ruled upon by a Florida court without the need for a hearing.

Florida law requires that anyone who files an ex parte motion or petition must swear under oath that all facts stated in the petition are both accurate and true. For this reason, a detailed statement outlining the emergency and issues at hand is necessary.

Further, the petitioner's attorney must also sign a statement indicating that notice to the other party should not be required. Should the court grant the petition, copies of the order will be served on the other party by Florida law enforcement.

These safeguards and the state's procedural requirements are meant to limit the potential of abusing the fact that emergency motions can lead to fast legal decisions without a hearing. The case of Smith v. Crider demonstrates that Florida courts will not look kindly upon trial court decisions that grant emergency motions when the state's procedures and safeguards are not followed.

However, it is important to note that an emergency order is only temporary. Once an emergency motion/ex parte petition is granted, the court will set a hearing to address the petition. Hearings are usually heard shortly after the other party is notified of the emergency order, giving the other party a chance to quickly challenge the motion, as required by the Constitution's Due Process guarantee.

As such, it is essential that emergency motions be treated as a legal choice only when it is truly necessary in an emergency situation. Filing an emergency motion when there is not truly an emergency or the facts do not support an ex parte petition will not help a party's legal case.

If you have questions regarding emergency motions, or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at contact@themckinneylawgroup.com

Damien McKinney

The McKinney Law Group, 1105 West Swann Avenue, Tampa, FL, 33606, United States

Damien has practiced in of all aspects of marital and family law for his entire career and offers a rare commodity, a lawyer dedicated solely to his area of practice.