In a divorce or family law matter, things come up all of a sudden that often require the courts immediate attention. To get a Collier County, Florida court to address these sudden matters you must file an emergency motion in order to have the judge hear your case immediately. Having an emergency motion heard immediately is no small feat in Naples, Florida. Many steps must be followed and those steps are outlined below.
The entire Anglo-American judicial system is based upon due process and the U.S. Constitution guarantees “due process.” Due process means that you get a fair hearing on any matter where you’re given adequate time and resources to present and/or defend your case.
An emergency hearing in a family law court (or any court), is in direct contravention to the concept of due process. An emergency motion asks for an emergency hearing where the petitioner, the respondent and the court have little to no time to consider the matter properly. Still yet, emergencies happen in real life and must be addressed…they just have to be addressed appropriately.
How an emergency motion works in a Naples, Florida family law court.
As of this writing, there are two judges who handle family law matters in Collier County, Florida: Judge McGowan and Judge Cupp. Both judges share the exact same standing order regarding emergency motions which reads as follows:
“EMERGENCY HEARINGS: All matters considered to be an emergency by a party or counsel must be stated in a written motion that is filed with the clerk and served on the opposing party or counsel, if any. A copy of the motion must be delivered to the judge’s office after the original has been filed and served. The judge will review the motion to determine if there is an emergency. If so, the judge will decide how to address the emergency with an order to show cause, expedited hearing time, or other appropriate relief. If there is no emergency, hearing time in the ordinary course will be given. All emergency motions must be sworn to and signed by the party. If emergency motion relates to a children’s issue, a UCCJEA affidavit must accompany the motion.”
So, you must prepare the emergency motion, sign the emergency motion, file the emergency motion and then drop off the emergency motion at the judge’s office. The judge will then read your emergency motion and decide if the situation is indeed an emergency.
The standard of what constitutes an emergency in a Florida family law matter is in the eye of the trial court judge. Case law has outlined that an an emergency order requires an emergency situation “such as where a child is threatened with physical harm or is about to be improperly removed from the state.” Smith v. Crider, 932 So. 2d 393 – Fla: Dist. Court of Appeals, 2nd Dist. 2006
Almost nothing financial, such as child support, shall be deemed an emergency matter.
If the matter described in the filed emergency motion is deemed to be an emergency, the judge will then schedule a hearing on the matter at a time convenient to the judge. Presumably, you will be available at that time. After all, it is your emergency.
If the matter is not deemed an emergency by the judge, the judge will issue an order declaring the matter NOT an emergency. You may still file the motion as a regular motion and ask for a date via the regular motion calendaring system (which may be months away).
At the emergency hearing you will be given the opportunity to present evidence supporting the relief you’re requesting. The opposing party will also have the opportunity to present their own evidence supporting their position.
What If I Can’t Give The Opposing Party Notice of My Emergency Motion?
You’ll notice the standing order requires that the emergency motion be “served on the opposing party or counsel, if any.”
In real emergencies, the opposing party is usually unavailable because they’ve done something so terrible it requires an emergency motion (they’ve hurt someone, disappeared, sequestered money or children).
When you request emergency relief without appropriately informing the other side that is called asking for an “Ex Parte” order. It is more difficult to get an Ex Parte order than it is to get an order when both sides are informed or present.
The Collier County family court judges’ standing order addresses how they handle Ex Parte orders:
“EX PARTE ORDERS: An ex parte order is one that is entered without notice to the opposing party and without an opportunity for the opposing party to be heard before the order is entered. In most cases, an ex parte order may violate due process of law and orders that violate due process are void, unenforceable and a nullity. Nevertheless, the law does allow ex parte orders in some situations, e.g. , F.S. §741.30(5)(a), which allows an ex parte injunction to be entered for protection against domestic violence. Motions for an ex parte order must contain specific citations to the legal authority that gives the judge the authority to enter an ex parte order in the situation alleged in the motion. Without such legal citations, ex parte relief may be denied. Strict compliance with Rule 1.610, Rules of Civil Procedure, is required. “
So, if you are not able to inform the other side of your motion, you will have to specifically cite either the Florida statute or case law which allows the court to issue an ex parte order despite the fact that an ex parte order directly contravenes the concept of due process. This is a high bar.
Temporary Injunctions in a Naples, Florida Family Law or Divorce Matter
Almost all emergency motions ask for some kind of temporary injunction. That is, a request that a person do or not do something on a temporary basis.
In a divorce or family law matter, these injunctions (when granted) will require a party to not touch money or an asset until the appropriate disposition of that asset can be ascertained. Alternatively, an injunction can require that a child be someplace or do something until it is properly determined what is in the best interests of that child.
Florida has a Family Law Rules of Civil Procedure which specifically outline what is required in a petition for temporary injunction.
“A temporary injunction may be granted without written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant or movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.” Family Law Rules of Civil Procedure Rule 12.605(a)(2)
Again, the Florida Family Law Rules of Civil Procedure require that you show in writing, why it is an emergency by requiring an “immediate and irreparable injury, loss or damage” that only an injunction can prevent.
Your petition for temporary injunction better be good because that’s the only thing the court will consider unless the opposing party shows up to the hearing.
“No evidence other than the affidavit or verified pleading may be used to support the application for a temporary injunction unless the adverse party appears at the hearing or has received reasonable notice of the hearing. Every temporary injunction granted without notice must be endorsed with the date and hour of entry and must be filed immediately in the clerk’s office and must define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given. The temporary injunction shall remain in effect until the further order of the court.” Family Law Rules of Civil Procedure Rule 12.605(a)(3)
If your petition for temporary injunction is asks for something financial like “don’t spend marital money on a business venture” you may be required to post a bond in case your temporary injunction causes some kind of financial damage to the opposing party or other interested party. This is very rare in family court and not required when the temporary injunction is about safety (which most are).
“(b) Bond. No temporary injunction may be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined. When any injunction is issued on the pleading of a municipality or the state or any officer, agency, or political subdivision of it, the court may require or dispense with a bond, with or without surety, and conditioned in the same manner, having due regard for the public interest. No bond shall be required for issuance of a temporary injunction issued solely to prevent physical injury or abuse of a natural person.” Family Law Rules of Civil Procedure Rule 12.605(b)
The final injunction as issued by the court has to be as specific as possible so that the parties (and anyone else) can follow it appropriately. Typically, the petitioner’s attorney prepares the proposed injunction and tenders the proposed injunction to the court.
“(c) Form and Scope. Every injunction must specify the reasons for entry, must describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and must be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.” Family Law Rules of Civil Procedure Rule 12.605(c)
Finally, temporary injunctions are really temporary. The opposing party can file a motion to dissolve the injunction and they must be heard within 5 days of filing that motion to dissolve.
“(d) Motion to Dissolve. A party against whom a temporary injunction has been granted may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion must be heard within 5 days after the movant applies for a hearing on the motion.” Family Law Rules of Civil Procedure Rule 12.605(d)
Emergency Verified Motion For Child Pick-Up Order
Perhaps the most common emergency motion filed in Collier County is the Emergency Verified Motion For Child Pick-Up Order.
This motion asks that the Collier County Sheriff or any other law enforcement agency help you retrieve your children from whoever is watching them pursuant to an existing order.
This means that you must have an existing order awarding you parenting time at that time in order to get a child pick-up order.
For example, if your children’s mother and father won’t release the children to you for your weekend, the police will instruct the parties to follow the order as written but the police aren’t likely to be so aggressive as to physically force the other parent to hand over your children. But, if you have a child pick-up order, the police will do everything in their power to enforce your parenting time at that moment.
This is, obviously, a horrible way to arrange the pick-up your children and should be used sparingly but, unfortunately, you may have no choice.
The standardized form for an Emergency Verified Motion For Child Pick-Up Order can be found here.
If you need to file an emergency motion or your ex-partner has filed an emergency motion, do not hesitate to contact my Naples, Florida family law firm to speak with an experienced family law attorney.