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Abuse of Emergency Motions: Abusing the System to Protect from Abuse

family lawyer
family lawyer

Although our offices are located in Orlando and Tampa, I take cases all over the state of Florida. In the last few days, I have appeared in Hillsborough and Sarasota Counties and will most likely appear in several other courts next week. Seasoned attorneys recognize that courts rarely grant emergency relief. However, attorneys repeatedly file emergency motions only to be denied the relief that they are requesting. What constitutes an emergency to the client and what constitutes an emergency to the court are too very different things. Filing a frivolous emergency motion comes with great risk both to the attorney and the client. In the event the court denies the motion, which is often, the Court can order attorneys fees against the moving party.

To fully understand the basis for an emergency motion, we must look at the logic behind allowing such a motion. The reason for emergency hearings is simple and necessary. The Fifth and Fourteenth Amendments require due process before depriving someone of life, liberty, and property. Only in the event of an immediate threat of irreparable harm/injury, can a party move for emergency relief because the threat outweighs the requirements of due process.

The burden to overcome due process is great and should not be taken lightly for good reason. So what constitutes an emergency motion? Examples of circumstances that may support emergency relief include the following:

  • Allegations of child abuse, neglect, or spousal abuse.
  • Credible threats to remove a child from the residence, school, state, or country.
  • Evidence of drug use or alcohol abuse, which may cause immediate harm to an individual.

Obviously, whether the situation constitutes an emergency will depend on the individual facts and circumstances. If a court grants emergency relief, the consequences can be severe. The court may prevent one party from coming within a certain distance of another, order temporary exclusive use of the family residence, or order a temporary parenting plan. The court’s ruling can have harsh and life-altering effects, therefore courts sparingly grant emergency motion on an ex parte basis (without the other party present). Further, courts are generally against emergency motions because they do not provide adequate notice to the other party and the opportunity for the other party to appear and respond.

Many attorneys simply file emergency motions to please the client, knowing they will most likely be denied. In the end, this is really nothing more than a waste of time, money, and effort. In tackling any legal dilemma it is imperative that the attorney and client have a realistic strategy to attempt to achieve the best results possible for the client. Although emergency motions may be appropriate in certain circumstances, those circumstances are rare and should be reserved for true emergencies.