Emergency Custody of a Minor Child

A frequent question that arises in many family law cases is, "Can I file for 'emergency' custody of my child?" With the multitude of issues in divorce and paternity cases involving custody of children, the topic of what actually qualifies as an emergency comes up all too often. The safety of all children involved in these cases is of utmost importance and it is critical that the parent seeking such relief knows the standard for what the Court may deem to be an actual emergency.

In order to have grounds to file for immediate physical custody of a minor child in Florida, either of the child's parents must allege that there are very serious circumstances concerning the child which warrant the Court needing to take immediate action. Florida Statute §61.534 states that, in order to issue an order granting one of the parents the ability to take emergency custody of a child, the Court must first make a determination as to whether, given the specific situation involved, the child is likely to imminently suffer serious physical harm or removal from this state.

Pursuant to this statute, if the Court decides that the child is likely to imminently suffer serious physical harm or removal from this state, the Court must then issue a warrant for the child to be immediately removed from the dangerous parent and placed with the other parent. Law enforcement officers assist with this process. Because this part of the process is done without the other parent's knowledge, when the warrant is issued, the Court must schedule a hearing to take place the day after warrant was issued, if at all possible.

Many parents are faced with the situation wherein either the Mother or Father withholds the minor child from the other and refuses to allow the other parent to see the child. Understandably, when faced with this situation, a parent expects the Court to step in immediately to help them see their child, and that and "emergency" motion should be filed for this purpose. Sadly, the Court's authority in this situation is dictated by the statute, and because Florida Statute §61.534 does not include withholding a child from the other parent as a basis for a warrant, the Court cannot do so.

In the event that there is a court order in place including time-sharing for the minor child for both parents and one parent is withholding the child from the other, the proper procedure instead would be to file a motion requesting that the Court issue an order of civil contempt. In this situation if the Court finds that the parent willfully failed to comply with the Order, the Court has the discretion to then order sanctions and fines against that parent including attorney's fees and even incarceration, and the Court can also Order make-up time-sharing for the child and the other parent. And, if the parent continues to withhold the child after being found in contempt of Court, the Court can restrict that parent's contact with the child going forward.

In the end, if you find yourself in either of these situations, the Court will have a remedy for you.