Emergency Motions for Child Pick-up Order
By Orlando Family Law and Divorce Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
A Pick-up Order Is Possible Only Under Limited Circumstances
Many of my divorced family law clients will ask me if we should file for an emergency pick-up order for a child living with the other parent, if one considers the child to be endangered. For most situations when I am asked this question, the short and simple answer is “no”. This is because, a family law judge grants an emergency pick-up order ex parte (without an initial hearing). The law disfavors granting such drastic relief without affording the other party an opportunity to present their case.
This explains why family courts will only order the pick-up of a child under the limited circumstances described below. Even when an ex parte child pick-up order is granted, a return hearing is scheduled 2-3 weeks later. Furthermore, at that hearing, the party requesting the pick-up order still has the burden of proof of showing why it must remain in effect.
When to File a Motion for an Emergency Child Pick-up Order
A family court judge will only sign an emergency pick-up order in these circumstances:
A parent is harming the child or there is an imminent threat of harm to the child.
A parent has taken the child out of Florida or is about to do so.
Garden-variety parenting disputes and minor violations of parenting plans do not warrant ex parte child pick-up orders. However, protecting the child’s safety and moving the child out of the family court’s geographical jurisdiction, do warrant a pick-up order (at least in theory).
The Limitations of Obtaining an Emergency Pick-up Order
A recent case I experienced with one of my clients illustrates the difficulties of getting a family court judge to issue a pick-up order.
I was the family lawyer of a father of two boys in a case of a post-judgment modification of the terms of a divorce. The couple's older son, who was 17, voluntarily moved in with my client on the previews year because of difficulties he was having with his mother. She did not object to the older son’s decision. However, their 11-year old son still resided primarily with his mother, while spending about 35% of his overnights with my client. And our pending petition for modification of the divorce judgment sought to increase my client’s custody time-sharing with both children.
In the midst of this litigation, and without obtaining my client’s consent or an authorizing court order, the mother abruptly relocated to Georgia with their younger son and only informed my client of this after the fact.
Naturally, we decided to file an emergency motion for an ex parte pick-up order. After all, the fact pattern fit perfectly with one of the two criteria for granting these motions: She moved out of the state with the child. Unfortunately, the presiding family law judge declined to grant the motion without a hearing, but scheduled a hearing within two weeks.
At the hearing, the mother appeared without a family lawyer, and of course, I was there with my client. The mother defiantly explained to the judge that she decided to take her son to Georgia simply because she thought it was best for him. She admitted that she did not consult with the child’s father or file a petition for relocation (which is required for such a move).
The judge properly chastised her for acting in such a reckless manner, but still stopped short of actually granting a pick-up order. Instead, he ordered that the mother return the younger son to Florida within two weeks and make him available for the time-sharing that my client had been enjoying prior to her move.
The trial judge did not actually order the emergency pick-up of the child and his return to the father’s residence because he believed that it would be too “traumatizing” for the 11-year old boy. The case law that I cited in support of the issuance of a pick-up order apparently had no effect. Fortunately, my client was content that he could resume his time-sharing with his younger son in Florida while awaiting the final outcome of his custody time sharing modification action.
This scenario demonstrates how family law judges can deviate from established case law to craft their own solutions, and how difficult it is in practice to obtain an ex parte emergency pick-up order. Please keep this in mind when considering having your family law attorney seek this kind of relief.
What AAA Family Law Can Do For You
If you have questions about ex parte child pick-up orders or any other family law issues, I encourage you to call AAA Family Law at (407) 260-6001 and schedule a consultation. There I will: (1) listen to your description of the family law situation the your are involved in, (2) explain my plan of legal action to protect your rights and achieve your legitimate objectives and (3) quote you a flat attorney retainer fee, not an hourly rate whose total you will only know when the case is over.
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