When It Is Necessary to File an Emergency Motion

If you ask divorcing couples, they will tell you that they would prefer if the process would be over yesterday. While that is not always possible, there can be situations that call for the filing of an emergency motion. In many cases, there are children in the mix which makes the whole process extremely delicate. The children’s interests should always take first priority under whatever circumstances.

• When is this allowed?

If the court is convinced that there are children that require protection, an emergency motion is allowed. For instance, if it is proven that spending time with one of the differing partners is harmful for the child, the other partner may be allowed to enter a temporary emergency modification. Experts like Child Custody Rights of Fathers in Orange County would be in a position to advise you on whether you should file such a petition. Any court will consider the plight of children over anything else.

• How do courts determine when it is appropriate?

Courts have always struggled with the notion of when to file an emergency modification. The health (mind and body) and the safety of the children involved is the first priority; so whatever the court does, that must be the deciding factor. Following the due process and the rights of the parent come a close second.

The court must have enough evidence to show that:

• The child’s safety is threatened.
• One parent plans to improperly remove the child from one state to another or even overseas.
• One of the parents is interfering with the visitation rights of the other one without showing just cause.

Under such circumstances, an emergency petition may be preferred. Children cannot be placed in a situation which may be tragic or unhealthy for them. They should not be moved out of the state when the divorce is ongoing either.

• The two-part test

This test also determines whether it is necessary to file an emergency petition. When the parent moves for modification, the court outlines the legal burden. Both parties are given notice when the burden is applied in a full hearing. The parent who applies for this petition is expected to prove to the court why it should be granted.

In order for this to work out well, a two-part test must be satisfied. The petitioner proves that: beyond reasonable doubt proof that:

• The circumstances have changed drastically.
• The children will be advantaged by the modification.

This basically means that the one filing the emergency petition must satisfy the court that circumstances have changed to the point of necessitating an emergency petition to protect the children. This change has taken place in the course of the previous petition and was unprecedented.

If the noncustodial parent fails to prove that there is sufficient reason to file the emergency petition, then petition or modification order will be reversed. Having expert counsel like Best Orange County Fathers Rights Attorney would greatly help if such an occasion should arise that warrants an application for an emergency petition.