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Filing a Motion in Family Court During Coronavirus: What Constitutes an Emergency?

May 6, 2020
Family Law Advisory

Family Law Advisory IconAs our courts effectively remain closed for regular business, most courts are only hearing what are deemed emergency motions while scheduling others out for much later hearing dates via telephone or Zoom. But the question becomes, what does the court consider to be an emergency? For instance, many parents have real concerns about their children exercising parenting time in the other parent’s home if someone living there is an essential worker, whether that be a doctor, nurse, truck driver or employee of a grocery store. But is that an emergency? That alone does not rise to the level of denying parenting time or an emergency motion to suspend parenting time. What if a parent tells the other parent that a person living in his home has a fever but still wants to exercise parenting time? Is that an emergency? Likely not. Another parent insists that his child get on a plane from an area with no COVID to come into an area that has been considered a hot bed. That the parenting time might be exercised in a hot bed does not likely make it an emergency, but that the child will have to travel to an airport, sit on a plane and travel out of an airport might. In other words, that child will not be able to social distance and certainly could have greater risk to being exposed. While the courts want parents to follow the parenting time orders, they also seem to favor limiting people's movements in accomplishing that compliance.

Every scenario must be evaluated individually, but most judges seem to agree that that an emergency must meet the standards for seeking ex parte relief (relief provided without notice to the other side and no initial hearing). Parties request ex parte relief by asking the court to enter an order based on the belief that irreparable injury will occur if the court does not enter the order immediately. This happens in cases where the party is concerned that if the other party is provided notice of the relief sought, the notice itself could or would precipitate negative or harmful events.

Scenarios arising due to COVID or the stay-at-home orders are not exactly the same, but judges seem to be applying that standard. Irreparable injury gives a basis for the standard to use when determining whether your particular facts are an emergency for being heard by the family court quickly. Likely the parents have already had a discussion, sometimes heated, as to what is in the best interests for the children. They do not agree, and one parent insists on exercising parenting time. If the parent believes that irreparable injury would occur or if the likelihood is so great given the specific facts, then a motion might be filed to have the court determine what is in the best interests of the child. 

If you have a situation or believe you will have a situation coming up soon, it is advisable to contact a lawyer to discuss your situation. Sometimes talking it through with a lawyer is helpful, and a lawyer can provide strategies to possibly rectify the situation outside of court, such as an offer of specific makeup parenting time or an attempt at mediation if time allows

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