How to File an Emergency Motion in Family Court
Family courts handle a wide range of sensitive issues, from divorce and child custody to domestic violence and child abuse. When a serious family issue requires immediate attention from the court, you may need to file an emergency motion. An emergency motion asks the court to take swift action to prevent potential harm to you or your child while your case is pending.
Filing an emergency motion is a complicated legal process that varies by state. This guide will provide an outline of the basic steps and requirements so you understand how to file an emergency motion in family court.
What is an Emergency Motion?
An emergency motion is a legal request asking the family court to take urgent action because of a crisis or dangerous situation involving you or your children. Emergency motions typically seek protection, change of custody, or a court order stopping the other party from doing something.
Some common reasons to file an emergency motion include:
- Imminent danger: You believe your child is in immediate danger of physical or sexual abuse from the other parent or family member. This is one of the most compelling reasons courts will agree to emergency action.
- Abduction threats: You have evidence the other parent plans to flee with the child, often to another state or country. Courts can order immediate return of the child.
- Substance abuse issues: Drug or alcohol abuse by the other parent is putting your child at immediate risk of harm. Courts can order testing or change custody.
- Medical emergencies: Your child has an urgent health issue like a psychiatric emergency, and you need the court to intervene quickly.
- Financial distress: The other parent liquidated assets or isn’t providing court-ordered support, putting your family in financial crisis.
When Should You File an Emergency Motion?
Emergency motions should only be filed for truly urgent situations that can’t wait for the normal court process. Don’t file an emergency motion just to get faster resolution of your case. The court will deny frivolous requests.
You should file an emergency motion if:
- There is a genuine crisis requiring immediate court action.
- All other efforts to resolve the issue directly with the other party have failed.
- You have proof and documentation to back up your claims.
- Traditional court proceedings will not happen fast enough.
Only file an emergency motion as a last resort when no other alternatives exist to protect yourself or your child! These motions require clear evidence and often require you to prove irreparable harm if the court does not act immediately.
Steps to Filing an Emergency Motion
The exact process for filing an emergency motion will vary by state and local court rules. However, there is a general multi-step procedure you can expect:
1. Check Local Court Rules
The first step is reviewing your family court’s local rules to understand requirements like:
- The proper emergency motion form. Courts often have pre-printed forms.
- Any filing fees or fee waiver options. Fees typically range $25-$100.
- Rules for notice and serving the other party copies. Most courts require immediate notice.
- Specific hearing request procedures. You may have to schedule the hearing yourself.
- Documentation and evidence rules. Local rules dictate what proofs must be filed.
Reviewing the court rules ensures your motion doesn’t get dismissed on procedural grounds before the judge ever considers the merits of your case.
2. Complete the Proper Legal Paperwork
Once you identify the correct forms, complete them fully and accurately. Required documents usually include:
- The emergency motion form. This covers your request and grounds for emergency relief. Explain the crisis situation clearly and provide specific actions you want the court to take. Ask only for urgent relief that can’t wait – don’t include issues that aren’t emergencies to be resolved later.
- A supporting affidavit. Attach signed affidavits swearing all information in the motion is truthful. Affidavits carry evidentiary weight. Include additional evidence like police reports, medical records, threatening messages, etc.
- Proposed temporary orders. Draft the emergency orders you want the judge to approve if they agree an emergency exists.
- Information form. Basic information like names, contact details, case numbers, and involved parties.
Take time to fill out all forms completely, accurately, and legibly. Research court rules so you know the right number of copies and deadlines for submission if the court must review papers before the hearing.
3. File the Motion with the Court
After completing the forms, file them with the family court clerk by the required deadline. This may be done by mail, in person, electronically, or using a drop box depending on court rules. Get a file-stamped copy of the motion for your records.
Provide additional copies for the clerk to serve the other party if required. Understand the rules on who must serve copies to the other parent – in some courts, you must arrange service through the sheriff’s department.
4. Receive a Hearing Date
In many courts, the clerk will set a hearing when you file the motion or will instruct you to schedule it directly with the judge’s office. The court will select the soonest available date, but you may have to wait 1-2 weeks depending on the judge’s calendar.
If the situation is extremely urgent, ask the clerk if an emergency hearing can be set sooner based on danger to the child. Have evidence ready to verify the emergency if questioned.
5. Attend the Hearing
Prepare diligently and arrive early to the hearing with all your supporting evidence and prepared to explain why emergency action is essential. The other party will likely question or rebut your claims. Answer direct questions from the judge honestly and avoid emotional outbursts.
If the court determines emergency relief is warranted, the judge can issue temporary orders effective immediately until a final decision is made in your case. Both parties will receive a copy of the orders.
6. Follow Up with Written Orders
After an emergency hearing, one party will be instructed to draft formal written orders for the judge detailing what was approved verbally in court. This party must properly file and serve the orders on the other parent.
Review written orders carefully before signing to ensure proper reflection of the court’s rulings. Object in writing within deadlines if the orders deviate from the judge’s decision.
Tips for a Successful Emergency Motion
- Provide extensive credible proof – Affidavits, documentation, reports from professionals, eyewitnesses, etc. Evidence is key.
- Stick to true emergencies – Judges rarely approve motions for non-urgent matters. Focus on immediate danger or irreparable harm.
- Follow all instructions – Observe court rules, attend hearings, meet deadlines. Missing procedures can doom motions.
- Remain calm and factual – Avoid emotional outbursts. Clarity and evidence should speak for themselves.
- Be prepared and organized – Bring multiple copies of forms, exhibits, and orders. Keep careful records.
Emergency Motions the Court May Grant
If you prove irreparable harm to your child will occur without immediate relief, the court can order a broad range of emergency provisions, including:
Temporary Custody or Visitation Changes
If the current custody arrangement endangers your child’s physical safety and emotional well-being, the court may:
- Award you temporary sole legal and physical custody
- Suspend the other parent’s visitation rights
- Order supervised visitation only
- Require visits occur in public places only
- Prohibit overnight visits
The court focuses on steps to protect your child first and foremost. Custody changes remain in place until the final orders.
Restraining orders demand the other party refrain from certain actions like:
- Causing any form of abuse (physical, sexual, emotional, etc.)
- Contacting you or coming near your home, work, school
- Taking the child from the home or daycare
Orders remain effective typically for 1-2 months until the final hearing when permanent orders are issued.
If substance abuse poses an immediate danger to the child, the court can order random drug testing and substance abuse assessments. Refusing the test or failing it can result in emergency custody changes.
Child Support Modification
If the child is at risk of harm due to unexpected loss of court-ordered child support, you can request emergency adjustments like:
- Immediate resumption of support payments
- Higher temporary support until final orders
- Payment of past-due support owed
This urgent relief can prevent further harm to the child while broader financial issues are resolved.
To protect assets, the court may forbid the other party from:
- Liquidating property, investments, or bank accounts
- Making large purchases or opening credit cards
- Cancelling insurance policies
Such orders give you financial stability while property division is pending.
Counseling or Classes
Where emergency issues involve mental illness, domestic abuse, or addiction, the court may order:
- Psychiatric evaluation or therapy
- Random drug testing
- Parenting or anger management courses
- Child counseling
- Substance abuse counseling
Professional evaluation and treatment often accompany other emergency relief.
Other Legal Assistance
Because emergency motions often raise complex legal issues like domestic violence statutes and jurisdictional disputes, consider retaining a family law attorney to assist with your motion if possible.
If you cannot afford a private attorney, research low-cost legal aid services in your area that may be able to provide limited scope help like:
- Reviewing your motion and evidence for completeness
- Ensuring your request meets the legal standards
- Advising you on state laws and local procedures
- Possible limited appearance as counsel at the hearing
Free legal assistance can make the difference in getting emergency relief approved.
Filing an emergency motion in family court is daunting, but imperative when your child or family’s safety hangs in the balance. With extensive documentation of the emergency, adherence to all court rules, and clear justification of the urgent need, the judge is far more likely to grant the temporary relief necessary to protect your child until permanent orders can be determined. While waiting for the final custody outcome, take every step to gather evidence proving the emergency and need for court action to keep your case, and your family, moving forward.
Frequently Asked Questions
What is considered an emergency situation for a family court motion?
Family courts consider situations that place a child at immediate risk of harm or abuse genuine emergencies warranting swift action through emergency motions. This includes physical, sexual, and emotional abuse, abduction threats, substance abuse issues, medical emergencies, and financial distress.
How soon will the court schedule a hearing on my emergency motion?
Most courts will set a hearing date within 1-2 weeks of filing the motion. If the emergency is urgent, request the earliest possible date and provide evidence of potential irreparable harm to the child without immediate court intervention.
Can I request the other parent be removed from our home in an emergency motion?
Yes, your motion can request the court order the other parent immediately vacate your shared residence. To support this request, provide proof of domestic abuse, violence, intimidation, or other behaviors showing it’s unsafe for the other party to remain in the home.
What happens if I lose an emergency motion hearing?
If the judge decides your situation does not warrant emergency relief at this time, the court will deny or dismiss your motion. However, this does not affect the final outcome of your overall divorce or custody case. You can still proceed with regular filings and hearings.
Can I file multiple emergency motions in my case?
You can file additional motions if new emergency situations arise that require urgent court action before final orders. However, judges frown on parties who excessively file emergency motions. Ensure each request is warranted by a genuine immediate crisis impacting child safety.