Emergency Motions During Divorce

Emergency motions

Florida court allows the trial court to enter temporary emergency modifications to post dissolution time sharing orders. In any chapter 61 action involving children, the court is authorized to enter an emergency temporary order on its own motion if the court deems the order necessary to protect the child. For example, if the court, in a proceeding, initiated to enforce time sharing perceives that the movements, conduct while spending time with the party’s child may be harmful to the child, the court may modify the final judgment and restrict time sharing on its own motion. However, the modification may only be temporary, pending a full evidentiary hearing. Longo versus Longo. 

True emergency test

Florida courts have wrestled with the issue of when it is appropriate to make emergency modifications to time sharing agreements post dissolution. The difficulty in deciding these cases, if the trial court must weigh the health and safety of the children against the due process rights of a parent to be heard on the issues. In Bon versus Rivera, the court drew from this history of cases and refers to a “true emergency test.” The court narrows the circumstances of when to rely on the “true emergency test.” “That test applies in a very limited circumstances, such as where a child is threatened with physical harm or is about to be improperly removed from the state.” 

In the Gielchinsky case, the father requested an emergency hearing because the mother was interfering in his visitation rights and he wanted to move the children to another school. During the hearing, his counsel conceded she had requested an emergency hearing to get an earlier date. The court ruled, “We do not intend to discourage trial courts from taking appropriate actions where there is a true emergency, where, for example, a child is threatened with physical harm or is about to be improperly removed from the state.” The appellate court concluded, “Trial court abuses its discretion in temporarily changing custody where, as here, custody was already established by a judgment and the petition to permanently change custody is pending, unless there is a real emergency.”

Two prong test

The Bon court then outlines the legal burden incumbent upon the parent moving for modification. This burden should be applied in a full evidentiary hearing, in which both parties are given notice and where the “petitioning parent bears an extraordinary burden to prove a substantial change in circumstances.” “In order to obtain a temporary custody modification, the moving party must satisfy a two part test by establishing through competent, substantial evidence that (1) there has been a substantial or material change in circumstances and (2) the modification is in the best interest of the child or children involved.” To meet the “substantial change prong” of this test, there must be a “factual basis sufficient to show that conditions have become materially altered since the entry of the previous custody degree.” The petitioning parent bears an extraordinary burden to prove a substantial change in circumstances. “In the absence of a properly plead modification petition, it is an error to enter a modification order. Further, if the noncustodial parent fails to allege that a substantial and material change has occurred and the trial court fails to make a similar finding, the modification order should be reversed.” 

For more information on emergency motions, contact divorcemenonly.com to learn more. Kenny Leigh & Associates is a law firm that specializes in family law for men all throughout the state of Florida.

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