What Truly is an Emergency in Family Law?
The motto of the Florida Family Court when it comes to minor children is “in the best interest of the child.” A minor child is a child from birth to age l8 or beyond if the child cannot support themselves for physical or mental reasons. Every attempt is made when the court must decide how a minor child will be cared for and nurtured to create as healthy an environment as possible for the child’s continued development. Whether the parents were ever married or lived together, the court feels minor children need both parents as they grow toward adulthood. Parental timesharing has replaced primary or sole custody (Except in extreme cases such as a parent in jail, convicted of child abuse or domestic violence, on drugs, or too ill mentally or physically care properly for the child.). Minor children will spend equal time with each parent, including overnights, and a parenting plan will be in place to determine issues such as who cares for the child when a parent can’t? How is a child transferred between parents? Who has the child on holidays and birthdays? And how do parents and parent and child communicate?. It is hoped both parents will honor the terms of parenting and provide a safe and healthy environment for their child. Unfortunately, sometimes a parent does not provide the right kind of care, even to the point of an unsafe or threatening situation. There is a process for modification of timesharing and a parenting plan when necessary, but a parent must return to court to do this. What happens if the situation is an emergency and there isn’t time to go back to court?
Unless there are special circumstances, including one or both parents are in jail, have been convicted of child abuse or domestic violence, are on drugs, or have mental or physical reasons preventing proper parenting, parental timesharing is the way minor children are cared for. It has been proven many times over that children develop the best when both parents are a part of the child’s care and nurturing. This philosophy is carried out by the minor children spending as equal amount of time with each parent as possible. The time spent includes overnights as well as daytime together. There are different ways a judge will divide the timesharing, including every other week, and several days each week, and every other weekend. A parenting plan will be drawn up for each case and will address issues such as where a child spends holidays and birthdays, who cares for the child when a parent can’t, how will parents and parent/child communicate, who pays for extras like sports and daycare, and how will the child be transferred from one parent to the other. Additionally, major decisions in the areas of education, religion, discipline, and medical must be made by both parents discussing and agreeing together. So you can see neither the mother nor the father has priority under the law for caring for minor children.
Florida Family Courts will entertain a child emergency motion when there is “a matter of imminent abuse, neglect, or abandonment affecting the health, safety, or welfare of a child.” Examples of a matter given emergency consideration would be a proven threat to abduct the child, changes in the child’s environment that puts the child in immediate danger, serious child neglect or abuse, or substance abuse affecting the parent’s ability to provide proper care. If a parent feels the situation cannot wait for the normal court process of modification, they should immediately contact an attorney to help with the emergency appeal. A judge will only rule an emergency custody order for one parent to care for the child or a third party if both parents are found unsuitable in an extreme situation. Hence, it is essential to have professional legal counsel to handle the case. Sometimes a child will be placed in an emergency, short-term foster care while the situation is sorted out.
Even though a parent may deem a child custody problem an emergency, it is up to the judge to decide. As an emergency custody placement doesn’t allow for the other parent to have advanced notice of the hearing or to have their side of the story heard, the emergency decision is considered temporary, and a proper hearing will be scheduled as soon as possible, hopefully, the next day. It is important to note that withholding a child from seeing the other parent will not qualify for immediate court intervention unless there is a bonified emergency. The legal process for refusing to follow parental timesharing and the parenting plan must occur with the possible outcome of contempt with a fine and sometimes jail time. Make-up time can also be ordered.
Children are precious and should not be in adverse situations. Don’t hesitate to speak with a Family Law attorney if you are concerned about the care and nurturing of your minor child. Attorney Grant Gisondo, a Florida board-certified Family Law attorney, represents clients in Palm Beach, Martin, St. Lucie, Miami-Dade, Broward, Orange, and Hillsborough Counties, New York and Washington DC. His free, initial, in-office consultation can answer general questions, and you can learn how he can help your case. Please call (561)-530-4568 to make an appointment. Office hours are Monday through Friday from 9:00 AM to 5:00 PM and new clients on Saturday from 8:30 AM to 1:00 PM.