child custody case

by Patrick Gaffney

In the practice of Family Law, it is a common experience for a client to ask a lawyer to seek an emergency hearing.

Section 61.518(1), Florida Statutes (2015), provides that

[b]efore a child custody determination is made under this part, notice and an opportunity to be heard ․ must be given to ․ any parent whose parental rights have not been previously terminated.” Section 61.503(3) defines “[c]hild custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order.

In Bahl v Bahl, 220 so 3rd 1214 (Fla. 2d DCA 2016), the father filed his petition for dissolution of marriage.  In November 2015, the father and the mother entered into a temporary mediated agreement giving the father the majority of timesharing with the parties’ six-year-old son.  The trial court adopted the agreement.  The parties also agreed to the appointment of a guardian ad litem to investigate allegations of domestic violence between the parties and to evaluate the best interests of the child.  The guardian ad litem filed her report on May 6, 2016, prompting the mother to file that same day an emergency motion for change in temporary timesharing based on the findings in the guardian ad litem’s report.  Later that day, the trial court granted the mother’s motion on an ex parte basis, granting the mother primary timesharing, limiting the father’s timesharing to one hour of supervised visitation every other weekend, and prohibiting phone contact between the child and the father.  The father filed a motion to vacate the emergency order, which the trial court denied.

On appeal, the father argued that the trial court erred in granting the mother’s motion without giving him an opportunity to be heard because there were no allegations demonstrating that an emergency existed.  The case was reversed on appeal.

The Appellate court noted that a party’s right to due process may give way when an emergency situation exists, “such as where a child is threatened with physical harm or is about to be improperly removed from the state.”

Here, there were no allegations that the child was threatened with physical harm by the father or was about to be removed from the state by the father.  Rather, the mother alleged that the guardian ad litem’s report “outline[d] ongoing parental alienation perpetrated” by the father towards the mother.  The mother alleged the father’s actions, as observed by the guardian ad litem, were “terribly detrimental to the child’s well-being[ ] and may be causing the child irreparable harm.”  While the allegations by the mother and the findings of the guardian ad litem were serious and warranted consideration by the trial court, they did not rise to the level of harm that would excuse the trial court from providing the father with an opportunity to be heard.  At the very least, even if the allegations supported an emergency, once the trial court granted the ex parte order, it erred in not scheduling a prompt evidentiary hearing to allow the father to be heard.

The relief given in the Bahl matter was accomplished ex-parte, i.e., no notice was given to the other side.

The facts as recited above were taken directly from the Bahl decision.  The case is illustrative of a few salient points.  First and foremost, not everything that the client perceives as an emergency is in fact an emergency from a legal and contextual viewpoint.  This is where the lawyer can counsel the client and set appropriate expectations.  The fact is that there are relatively few true emergencies.

Secondly, it is important to note that even when an emergency is presented, the other party is entitled to a proper notice. It is only in rare circumstances when a judge will sign an order ex-parte, such as when giving notice might cause a person to flee or place a person in danger. When ex-parte relief is granted, the other side is entitled to prompt notice.

A fair opportunity to be heard is the foundation of our legal system.  The request for an emergency hearing causes the court to balance the safety of a human being against the rights of the opposing party.


Contact us

Peacock, Gaffney, & Damianakis, P.A.
Phone: (727) 796-7774
Fax: (727) 797-6317

2348 Sunset Point Road
Suite E
Clearwater, Florida 33765