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Child Custody Emergency Motions: the basics

As a Chicago divorce attorney practicing in family law, I often deal with critical child custody issues. The most critical can be the other parent’s use of an emergency motion to manipulate a child custody dispute. If an emergency motion has been filed against you, contact me  and I may be able to help you with your child custody emergency.

What are motions?

When someone files a “motion,” it simply means that they are asking the court for something. For example, a parent might file a motion to have a child removed from a dangerous environment created by the other parent. Or, a parent might file a motion modify child support or visitation.

How about emergency motions?

In the context of a child custody case, emergency motions are most commonly those motions which must be filed to protect the life or health of a child. For example, if it is “blue shirt day” at pre-school and one parent refused to dress the child in a blue shirt that day – that is not an “emergency.” However, if one parent is dating a child molester and plans to leave that person alone in supervision of the child, that is most certainly in the realm of emergency.

Another example involves an interstate child custody dispute a parent has taken a child from Illinois, and the Illinois parent might file an emergency motion for the child’s return; in such a case, your case would probably involve the Illinois Uniform Child Custody Jurisdiction and Enforcement Act, or Illinois UCCJEA – one of my practice areas.

Emergency motions differ from standard motions in two major ways: 1) the notice required, and 2) appearance of the other party.

  1. Notice: With standard motions, the motion must be served (delivered) to the other party within a certain amount of time, and via a certain method (such as US Mail). Serving the other party allows that party to prepare to respond to the motion, and a chance to plan to attend the motion hearing and related appearances in court. However, for emergency motions, often only “emergency notice” is required (as in Cook County, Illinois). Emergency notice does not require use of US Mail but still requires the person filing the motion (the “movant”) to give “emergency notice” to the other party. In other words, the movant has to make some reasonable attempt to in form the other party of the emergency motion; email and phone may suffice in this situation.
  2. Emergency motions can be “ex-parte”: If a hearing is ex-parte, that means that the movant is going to be heard without the presence of the other party. Therfore, it is a unique situation where only one party – the movant – is allowed to present argument to the judge. While emergency motions are supposed to be employed in very serious situations, they are sometimes abused by parents and attorneys who either do not understand them or are wrongly using them to achieve an objective of litigation.

What are the problems with emergency motions?

The problem with emergency motions is that they are often misused. Since the movant does not have to provide standard notice to the other party, and can appear in court without the other party being present, there is a large temptation to use emergency motions to accomplish objects that could not otherwise be achieved.

For example:

  1. Fabricated emergency: The movant might simply make up facts that form the basis of the supposed emergency – there is no emergency. Unfortunately, a judge might believe the movant, think there is an emergency, and then grant the movant the requested relief (such as a change in custody).
  2. What is claimed to be an emergency is not one: Making a mountain out of a molehill. Ideally, a judge would dismiss the emergency motion due to lack of emergency. However, all judges are different, and one judge might think something is an emergency that 99 others would not. In that case, the movant might get the requested relief.

 How a lawyer can help:

As a lawyer, I take very seriously the job of helping clients respond to critical situations. In Illinois family law, there are no more critical issues that those involving children, and particularly, emergency motions.

If you have received notice that the other parent has filed an emergency motion, seriously consider finding an attorney that will help you respond on short notice. Personally, I feel it is a very high priority for me to help defend parents who are subjected to the abusive use of emergency motions. I can often appear in court in short notice, and though time to prepare may be limited, I may be able to help you defend against a baseless attack.

Contact me, Chicago divorce lawyer David Wolkowitz,  and I may be able to help you with your child custody emergency.

 

About the author: Contact Illinois family law attorney David Wolkowitz at 312-554-5433 or online. He is a family law and divorce attorney serving Chicago and the Counties of Cook, Champaign, DuPage, Kane, Kendall, Lake, McHenry, and Will. Areas of practice include divorce, uncontested divorce, child custody, visitation, spousal maintenance, child support, and the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”).

15 comments… add one

  • My son and I care for his daughter, who is a bit under 2 years old. The mom lives in Wisconsin, and wants to take my granddaughter back. The mom is bipolar. What should we do?

    Reply
  • There is a mother that lives with her ex and they have a daughter together. She wants to leave with the daughter but he won’t let her due to multiple threats. And when she brings up going to court for child custody he verbally abuses her. He doesn’t do anything to take care of the daughter and just wants her for show. During the pregnancy of the child he opted several times for an abortion. He is the sole provider in the household and doesn’t supply any food so the mother and daughter starve while he goes out to eat. Can she file for emergancy custody to get out of that situation?

    Reply
  • My little girl’s father during his parenting time tells his wife to check her private area before she comes home because she developed vaginitis after being in his care. I am furious and want to file an emergency motion against his parenting time.

    Reply
  • My brothers ex-wife has been lying for years about her now 11 year old daughter and over-medicating her. The most recent drug change left her so out of wack she starting hallicinating. The mother has since had her commited to a mental hospital against her will. The poor child has been begging and pleading to get out and my brother is beside himself trying to figure out what to do to get her out of this evil womans hands. We also believe the mother is trying to keep her drugged up to cover up whatever horrible things my neice is being put thru in her care. Please help we are desperate for a solution

    Reply
  • My ex wife has sole custody. her criminal history involves theft, dui as a minor, assault, domestic violence and so forth. 4 days ago she got busted for a DUI and was arrested. In addition, her no longer best friend called me to arrange a lunch so she could tell me something. over lunch she stated my ex and her live in boyfriend are constantly snorting cocaine and also have syringes in the house that are accessible to my daughter. she further related my ex constantly drives drunk with our daughter. Is this an emergency? please let me know.

    Reply
  • My ex husband was granted sole custody of our son last august. He will be turning 4 in january. In the court order, it was said that he was granted custody because he was the parent most likely to foster a relationship between my son and both of his parents. I have not heard a word from my ex since he took our son. He has had his mother send me photos and let me call my son, but even that has dropped off to almost nothing. I was granted “reasonable and seasonal” visitation in the final judgment…but I have not seen my son in well over a year, and have not received any updates or been able to speak to him at all on over 4 months.Prior to my ex having custody, I was our son’s sold caregiver and provider. Now, it seems, my ex husband’s family is trying to cut me out of his life completely. What can I do? I miss my baby, as does his big brother…it has caused many mental and emotional side affects in both of us. We are low-income, and cannot afford to pay a lawyer much. Please help!

    Reply
  • If I have a doctors note for my child is that going to work for an emergency?

    Reply
    • Jamieee:

      I don’t know what you are trying to do, or what the doctor’s note would say. A child custody emergency normally involves risk of serious harm or death.

      Please visit the article you read and click the Google +1 button.

      Reply
  • I have a problem. My son’s father gets court ordered visitation every other weekend and we split holidays. He decides when he wants to show up and get him for both holidays and weekends. Is they’re anything I can do about this?

    Reply
    • Jennifer:

      One can file a motion to modify visitation to require on-time pickup, etc. But frankly, that answer doesn’t help you much. You will likely need a lawyer to file such a motion.

      Regards,
      David Wolkowitz
      Three-One-Two-554-5433
      Contact Attorney Wolkowitz online

      Reply
  • My boyfriend lives with me and our 8 month old son. I am currently trying to make him move out and he keeps threatening to take our son. He has serious health issues that include sleeping disorders. He falls asleep any where, every where at any time of the day, including driving. I rarely let him take the baby any where in fear of him crashing while driving. We don’t have any sort of custody agreement entered and i fear for my son if he does take him. Can an emergency motion be filed to give me custody and restrict him from taking the baby? What can i do?

    Reply
    • Adrianne,

      You might be able to get an order of protection. That might seem harsh, but it is is a legal remedy available. As for getting him out of your place, the order of protection might not cover that because he does not seem to be a danger just by living there. You need to retain a lawyer.

      Regards,
      David Wolkowitz
      312-554-5433
      Contact Attorney Wolkowitz online

      Reply

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