What exactly is an “emergency” in Family Law?
In family law, tension runs high and a lot of the time a party’s action is fueled by emotion, sometimes causing a “domino-effect” of sorts or triggering retaliation from their husband/wife. The Family Court identifies and assists parties (and their children) on an immediate basis if the need rises to the level of an emergency. Although it is not always the easiest thing to do, it is best to think logically – this keeps conflict at a minimum between both parties, a lot of the time eliminating the need for emergency requests.
The best way I can compare an emergency versus a non-emergency is: An emergency is when the “house is on fire,” all of your belongings and sentimental items are burning and there is no way that you can get those back. A non-emergency can be equated to a common cold; you feel horrible, the situation sucks, but after some medicine and sleep you will be feeling back to normal eventually.
So, what IS an emergency?
In order to qualify as an emergency, you have to show that exigent and detrimental circumstances will arise should the court not enter immediate orders. Possible situations are:
1) Domestic Violence. If you are a victim of domestic violence, you could ask the court for a Domestic Violence Restraining Order, asking that your abuser be refrained from contacting or further abusing you in any way. Physical abuse is not the only type of abuse that warrants a restraining order, but you can consult with an attorney to best determine if you should file for a restraining order based on your individual situation.
2) Child Abuse/Neglect. If your child is being abused or neglected by the other party, this is another valid reason to request emergency orders from the court. Keep in mind that child abuse does not consist only of physical abuse. Abuse/neglect has a vast range including physical, sexual, emotional, etc. A child may be considered neglected if they are being left alone without age-appropriate supervision, or if a child is falling witness to a parent doing drugs or abusing alcohol. It’s difficult to list each and every scenario but think of it this way…if your child’s physical, mental, educational, or emotional well-being is in danger, or their health is being put at immediate risk, they are being abused or neglected. If you feel that your child is being abused or neglected, it is best to address the situation as soon as possible. You do not want to allow time to continue going by and your child possibly be a victim to further abuse.
3) Absconding with your child. If the other parent has suddenly fled with your child, you can ask the court to order that they immediately return the child. This could also apply if the other parent has unilaterally removed your child (unenrolled) from school. Of course, this gets a little tricky if you and the other parent do not have custody and visitation orders in place yet, so it’s best to discuss with an attorney if your specific situation rises to the level of an emergency.
What is NOT an emergency?
As I mentioned above, when you’re trying to determine if you should file an emergency motion with the court, first think if the other party’s action(s) will cause detrimental circumstances that cannot be undone.
- Your partner left and you don’t have any money to pay your bills or buy food or other incidentals. I understand, this is an extremely tough situation to be in; however, it does not rise to the level of an emergency. The court will not make orders for “emergency child support” or “emergency spousal support.” If you find yourself in this type of predicament, it is best to immediately file a Request for Order with the Court requesting support from your husband/wife. California also has a number of assistance programs that could provide temporary relief in this time of need, including Cash Assistance, Food Stamps, and immediate access to a local Food Bank. (Visit www.cdss.ca.gov for more information).
- Your partner is refusing to follow the court order. (Another tricky one). If a parent is refusing to follow rather mild orders, such as not allowing telephone contact, or showing up late to exchanges, (although aggravating) this does not rise to the level of an emergency. The same applies to a partner who is refusing to pay their court ordered support – not an emergency.
- Your partner is not paying the mortgage. This is a “semi” emergency depending on your specific situation. Go ahead and discuss the facts and specific issues with an attorney to determine whether or not you should file for an emergency Request for Order or seek an “Order Shortening Time.”
Again, I can’t possibly list each and every scenario that could happen – but these are a few of the most common. Close your eyes, take a breath, and count to ten. Ask yourself if it is an actual “emergency” and then contact an attorney to see how they can best assist you.
Article written by: Tori Hernandez, Paralegal at Moore Family Law Group