The Exception, Not the Rule: Emergencies in Family Law and the Consequences of “Crying Wolf”

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Family law encompasses many issues – usually issues that are not only complex, but also emotional.  Family law clients often deem certain circumstances as an absolute emergency, and understandably, in that person’s life, the circumstances may qualify as an emergency. However, clients should recognize that what they consider to be an emergency often is significantly different from how a court views the situation.  Moreover, clients should also understand that their attorney is not being unsympathetic when explaining why they cannot, or will not, file an emergency motion for their client. Family law attorneys must determine whether  what their client has presented to them constitutes an actual emergency within the legal framework of family law, and also consider the possible consequences if the court determines that an emergency did not exist.

In almost 18 years of practicing family law, I have never filed an emergency motion. This does not mean that (1) clients have never asked me to file an emergency motion;  (2) I have never empathized with a client and felt that the circumstances they find themselves in would certainly feel like an emergency; or (3) I have never heatedly debated with a client regarding why their current situation would not qualify as an emergency in the court’s eyes.  The fact that I have never filed an emergency motion in almost 18 years does mean that true emergencies in family law are relatively rare.  Here are some reasons why true emergencies in family law are the exception, not the rule:

Balance of interests when children are involved.  As a parent, if the critical situation involves your child, the situation will likely always qualify as an emergency to you. However, when presented with a request to immediately suspend one parent’s time-sharing ex parte or without notice to that parent, the court must balance the best interests of the child with the rights of the other parent.  The situations that would warrant such an extreme action would be when a child is likely to suffer serious and imminent harm (i.e., a child is a victim of domestic violence and abuse, been neglected or abandoned, or endangered because of a parent’s substance use disorder or mental health issue) or there is a reasonable belief that a child will be removed from the state.

Legal process, preventative measures, and misunderstandingsIt may not provide much comfort at the time that clients are embroiled in their difficult situation, but the family law system is designed to handle most issues through an orderly legal process. Usually, parties must attend mediation prior to having a hearing before the court. The rationale behind this requirement is that parties are expected to attempt resolution of their issues between themselves before the court must step in and resolve the issues for them.  Further, family law involves legal tools that act as preventative measures in avoiding emergencies.  These tools may include standing administrative court orders, prior court orders specific to the family, parenting plans, and domestic violence injunctions. Lastly, many situations that appear to be an emergency are often a result of misunderstandings or miscommunications between parties. These situations can often be resolved through communication rather than the court taking immediate action.

Court’s limited resourcesA consistent statistic regarding family law courts in Orange County is that each family law judge has a minimum of 2,000 cases. Thus, imagine if 10% of these cases involved an emergency.  With the court’s limited resources, true emergencies must be prioritized.

Consequences of  misusing the term or “crying wolf”.  Misusing the term “emergency” will have consequences. Once the court receives a motion labeled as an “emergency,” the court will essentially drop everything they are doing in order to review and contend with the issues laid out in the motion. Thus, if the court subsequently determines the issues do not qualify as an emergency, the other cases that judge was handling have been affected by this interruption, leading to a domino effect of delay and continued congestion in the court system. Importantly, misuse of the term has also hindered the court in resolving other more urgent cases.  Lastly, and a large reason behind most attorneys’ hesitancy to file an emergency motion, one consequence of “crying wolf” is that not only does the client lose credibility, but so does that attorney. Family law judges commonly indicate in their written practice and procedures that an attorney who has titled, filed, and requested an emergency hearing on an “emergency” motion that later is deemed not to constitute an emergency, will never receive an emergency hearing again. Understandably, a client and an attorney that want to keep their credibility and reputation will use the term “emergency” carefully.

As an example of the high bar set for emergencies, the following is an excerpt from the practice and procedures of the Honorable Diana Tennis:

Emergency Hearings:  Parties are reminded that difficulties with time-sharing or other problems that are not objectively extremely serious and imminent are NOT emergencies.  Very rarely will the Court take ex parte action, as it does not afford due process to all parties.  Non-emergency issues should not be the subject of an emergency motion.  If a true emergency situation arises, counsel may request that a hearing be set on short notice.  The body of the motion must contain a detailed explanation of the circumstances constituting the emergency as well as the substance of the motion8. The Court will not take ex parte action on a motion that is not verified. The (Court’s footnote 8: Generally, this is where things go awry.  Emergency does not mean any dispute between parents no matter how dramatic. The request is by-it-nature a due process violation and that means should include allegation that include an airport or severe and immediate endangerment.  If not, and this is typically the case, try an ”expedited” motion instead.)

The above is in no way meant to minimize either true emergencies or the feelings of family law clients involved in what may be an incredibly difficult situation, but not rising to the level of an actual emergency. Family law cases are filled with emotionally charged and contentious situations. By understanding the distinction between a situation that feels like an emergency and what the court qualifies as an emergency, clients can navigate the family law legal system more effectively and efficiently.  If you would like to discuss a family law matter, please schedule a consultation with an attorney at Artemis Family Law Group today.


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