Memorandum: Emergency Motion

When should an emergency motion be filed? There is an old saying that a Judge will not grant an emergency motion unless there is “blood or broken bones”. This is obviously not a real standard in the law, but it is instructive on how hard it is to get a Judge to grant an emergency motion to change custody or force some type of pickup order.

A typical parent’s “emergency” is not the same as a Judge. Violation of timesharing is not a legal emergency. It absolutely is to a parent who is wrongly being restricted from seeing their child, but one has to remember what a Judge sees every day. A violation of timesharing does not even move the needle on the extremely sad things that Judges see. This does not mean a Judge will not take a violation of timesharing seriously. Quite the contrary, many Judges get very mad when a parent willfully and without any true reason violates a timesharing/ visitation order. Judges take very seriously their orders and if visitation is interrupted wrongly, there are usually consequences. Just usually not in an emergency manner forcing a parent to wait until a crowded calendar allows for a hearing. 

One has to be careful when filing an emergency motion. If you feel that your child is truly in danger, by all means, an emergency motion should be filed and/or the Department of Children and Family Services should be called.  In a situation where there is no danger, most prudent attorneys would recommend to not file an emergency motion. One theory is that you file it because the Judge may grant it and if not no harm, no foul. I believe a stronger feeling, however, is you do not file it because it has the ability to make you look hysterical and that you are overreacting. Again, it needs to be pointed out, that a true danger needs to be stopped immediately and aggressively. 

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