All aspects of the American legal system, including family law cases, are based on certain basic principles. One of these is due process of law, and one component of due process is that both opposing sides of a case should, with only a few exceptions, have an opportunity to be heard by the court before a ruling is handed down. In family law cases, the need to protect children can create situations in which an ex parte hearing is necessary in the case of an emergency. In one recent Orlando area case, a trial court custody order was overturned by the 5th District Court of Appeal precisely because the parent who obtained the ex parte change in custody never offered proof of an actual emergency.
The dispute centered around the custody of the four children of Safa Suleiman and Basem Yunis. After Suleiman and Yunis divorced in early 2008, the mother became the primary custodial parent, but both parents continued to live in Orange County, where the children also attended school. The mother later remarried and, in the fall of 2014, moved 28 miles west to a home in Polk County. The mother withdrew the children from school in Orange County and enrolled them in Polk County schools.
This led the father to go to court and challenge the legality of the mother’s actions. The father filed his request as an emergency ex parte motion, meaning that he presented his case to the judge without the wife’s (or wife’s attorney’s) presence in court. Allegedly, the mother had been blocking the father from exercising his visitation rights and had improperly moved the children without informing the father.
The judge granted the father’s motion and ordered the children placed in the father’s custody. The mother asked the court to undo the emergency order, but the court refused. The court ruled that the mother violated the law by preventing the father from having visitation and that her unannounced move was improper because it crossed county lines.
The wife appealed and won. The original order was improper because it was issued as an emergency ex parte order, but no proof of a valid emergency existed.
It is important to understand what you must assert in an emergency ex parte child custody motion. An emergency under the law only exists in rare, specific circumstances, like a parent’s imminent plan to remove the child from the state, or a threat of physical harm to the child. Yunis’ motion did not claim that Suleiman was planning to take the children out of Florida, that the children were suffering physical harm, or that any other sufficient emergency existed.
Also, there was nothing illegal about the mother’s moving without giving the father advance notice. The fact that the mother moved outside Orange County was irrelevant. The couple’s divorce judgment contained no clause barring a parent from relocating to another county. In fact, it had no language at all preventing relocations. Section 61.13001 of the Florida Statutes, which limits some parental relocations, only applies to situations in which the parent moves 50 miles or more. Suleiman’s move was only 28 miles, so the statute’s demands that the mother obtain consent from the father did not apply in this case.
Whether you believe you need emergency relief in a matter involving your children, or your spouse seeks to obtain such an order from the court, it is important to talk to legal counsel familiar with these types of cases. For determined and knowledgeable representation, contact the South Florida family law attorneys at Sandy T. Fox, P.A. Our experienced attorneys can help you protect your children and your relationship with them.
Contact us online or by calling (800) 596-0579 to schedule a confidential consultation.
More blog posts:
Father’s Failure to Return Daughter to Florida on Time Allows for Alteration of Parenting Plan, Fort Lauderdale Divorce Lawyer Blog, Feb. 18, 2015
Dealing With Timesharing Issues in Long-Distance Situations, Fort Lauderdale Divorce Lawyer Blog, Nov. 10, 2014