One of the most difficult issues for many people facing a family law dispute to understand is what constitutes grounds for an emergency ex-parte relief in a Florida family law court.  Family law cases by their nature deal with extremely important issues involving the most personal aspects of people’s lives so it is not uncommon to feel that one has an “emergency” in the layman’s sense of the term.  However, courts focus on the issue of due process and ensuring that parties to a court case receive adequate notice and opportunity to be heard.  The procedure for obtaining emergency ex-parte orders is technical with very specific factual justifications and failure to comply with any of the requirements will generally be a basis for denying a request for ex-parte emergency relief in a Florida family law court.

If a court grants such orders, they can result in a stay away order that prevents one’s partner or spouse from coming within a certain distance of you or your children, an order for temporary exclusive use of the family residence (also called a “kick-out order”), temporary parenting plan arrangements and sometimes even a temporary support order.  These are potentially very severe consequences so it can be difficult to get a court to entertain such orders on an ex-parte basis.  Generally, a moving party must show that their exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice.  They types of evidence that may support such a request may include evidence of the following:

• Recent incidence of child abuse, neglect or spousal abuse or spousal rape
• Credible threats by a parent to remove the child from the residence or school
• Evidence of drug use or alcohol abuse by the other parent

It should be obvious that these are pretty extreme situations, and even allegations of this type of incident may not be sufficient.  Beyond the high bar set by the test above, there are practical implications considered by a court.  Generally, a court is presumptively opposed to such orders because they do not provide an adequate opportunity to the other side to appear and respond effectively.  Even where you have an extreme situation like those indicated above, the court would look at certain practical implications including:

How Recent Is the Evidence: It is extremely common for people to request a Florida family law attorney to seek ex-parte emergency orders based on spousal abuse.  The court will look at the strength of the evidence as well as how recently the incident occurred.  Some people are surprised that many times incidents of spousal abuse that are even a month old may not support emergency relief.  The problem is that the court will look at the delay and assume that if the moving party was able to wait a month to file no emergency exists.

Property vs. Safety: Generally, the court is going to find certain issues more persuasive than other issues.  For example, safety and immediate threats of physical harm typically are more likely to justify emergency relief that potential impact on property or assets.  Most property issues can be resolved by way of future orders or equalization of property distribution.  When there is strong evidence of an immediate threat of physical harm that is recent, the strongest case for ex-parte emergency orders are presented.

Living Patterns Since the Incident: Courts are highly skeptical of claims regarding drug abuse, child abuse and neglect where the parent making the allegation in support of emergency relief has permitted the child to spend time alone in the care of the other parent since the incident.  The issue for the court is that if the danger to the child is really eminent and serious, then the parent making the request would not have entrusted the child to the other parent’s care after the incident or threat.

The bottom line is that it is that courts are hesitant to grant these types of emergency relief.

At Eric N. Klein & Associates, P.A., each Fort Lauderdale divorce attorney will carefully assess our client’s situations and provide a candid assessment of our client’s prospects for emergency relief.  If you are faced with a family law crisis that you believe may merit emergency orders, you should contact us today at 954-580-8080.