Emergency Modifications to Parenting Time and Responsibilities
Posted on December 29,2017 in Child Custody
Motions to modify parenting time or parental responsibilities are common, especially if the one parent has experienced a change in their work or living circumstances. However, sometimes a true emergency will happen, and in such a case, an emergency motion may be filed, Relief, however will not always be granted. Alternatively, a motion may be filed as an emergency when it is not one, and it is important to know the difference.
The Process of Filing
The regulations surrounding emergency motions differ from county to county. In Cook County, for example, the requirements are set out in the Rules of Court and are fairly clear, but things may be murkier in other jurisdictions. Emergency motions are generally somewhat different to the standard requests for modification in two major respects: the type of notice required and the requirements as to who must be present. With a “normal” motion, notice must be served on the other party, usually by mail, before a hearing can proceed. Emergency motions require only “emergency” notice (at least in Cook County), which is loosely defined as making at least one reasonable attempt to inform the opposing party of the motion’s filing.
The other difference between an emergency motion and a standard motion is in terms of who must be present. Most of the time, both parties and their counsel must be present for motion hearings if the motion at issue is related to their divorce. An emergency motion may be heard ex parte, meaning that the other party need not be present if you (the moving party) has made reasonable efforts to serve them with notice. While this can be helpful in a true emergency, it may also be used to manipulate the system if your ex decides to mount false allegations.
What Constitutes An Emergency?
Illinois law does not contain a standardized definition of an “emergency” as it relates to family law, thereby giving judges fairly broad discretion to interpret the term as they see fit. Sometimes, this can cause problems as a judge may declare an issue to be an emergency when it is not or fail to see a real emergency as necessitating modification of parenting time or parental responsibilities. Either way, misclassifying a situation can be problematic because depending on the nature of the situation, it may place your ex-spouse and possibly your children out of your reach if a judge is disinclined to act.
The most common situations that most judges will treat as emergencies involve either allegations of an immediate threat of physical danger to a child or a parent and child traveling out of state without notice or permission. Traveling out of state without permission, especially in divorces which ended acrimoniously, can be a red flag for an abduction attempt, and while allegations of an immediate threat must be investigated, it is common practice to remove a child from a home for their own safety while such investigations are made.
Seek Experienced Legal Help
During an actual emergency, it can be a source of comfort to know that you have a potential avenue to pursue legal remedies against your ex-spouse if they are necessary. However, it can be extremely intimidating to do so alone. Our dedicated DuPage County divorce attorneys are well versed in these cases and can try to help set things right for you. Contact our office today to set up an initial appointment.
Source:
http://www.cookcountycourt.org/FORATTORNEYSLITIGANTS/RulesoftheCourt/ReadLocalRule/tabid/1139/ArticleId/176/2-2-Emergency-and-Ex-Parte-Motions-Where-Notice-is-Not-Required.aspx
