29 May Emergencies: Ex-Parte Custody Orders in Florida Explained

Understanding the Ex-Parte Custody Order Process in Florida

An ex-parte custody order in Florida (“time-sharing” and parental responsibility”) allows one parent to seek emergency temporary custody of a child without notifying the other parent. Florida courts designed this mechanism to protect children from imminent harm, but parents must use it carefully and follow strict legal standards. In this article, we explain the requirements, challenges, and legal precedents—including the key case of Loudermilk v. Loudermilk, 693 So. 2d 666 (Fla. 2d DCA 1997)—that govern the use of an ex-parte custody order in Florida.

When Can You Request an Ex-Parte Custody Order in Florida?

Florida courts grant an ex-parte custody order only under extraordinary and well-documented emergencies. For example:

• The child faces imminent physical harm.
• A credible threat of abduction or removal from Florida exists.
• The child experiences severe neglect or abuse.

The legal foundation appears in Florida Statutes Section 61.13. Judicial precedent, such as Loudermilk, reinforces this principle. In that case, the appellate court ruled that disruption to a child’s schooling did not justify an ex-parte custody order in Florida.

Requirements for an Ex-Parte Custody Order in Florida

Florida Family Law Rule of Procedure 12.605 governs emergency relief. A parent must file a verified motion that includes:

• Specific facts that establish imminent danger.
• A sworn affidavit that explains why the other parent cannot be notified.
• Supporting evidence, such as police reports, medical evaluations, or witness statements.

Without meeting these conditions, the court will likely deny the motion. Florida courts prioritize protecting the due process rights of both parents.

Legal Challenges with Ex-Parte Custody Orders in Florida

1. Due Process Violations

The key issue with any ex-parte custody order in Florida is whether it violates the other parent’s constitutional right to notice and a hearing. In Loudermilk, the father did not receive notice of the emergency motion. Consequently, he could not defend his custodial rights. The court ruled that this omission violated due process.

2. Insufficient Emergency Justification

Not all urgent parenting concerns qualify as emergencies. In Loudermilk, the mother argued that changing the child’s school would harm his welfare. The court disagreed. It emphasized that the child faced no immediate danger and that no intent existed to remove him from the state.

3. Abuse of Emergency Motions

Parents who file an ex-parte custody order in Florida without valid cause may harm their case. Florida courts can reverse the order, impose sanctions, or dismiss the custody claim. Never use an ex-parte motion to gain strategic advantage in a custody dispute.

4. Burden of Proof

The requesting parent must provide credible, detailed evidence. Vague claims, hearsay, or emotional pleas without documentation will not meet the standard. Courts expect corroboration from third-party sources.

Case Study: Loudermilk v. Loudermilk

In this landmark case, the mother sought an emergency order to retain custody of the parties’ child. She cited school stability as the reason. The trial court approved her motion ex-parte. However, the father held primary custody and did not receive notice. The Second District Court of Appeal reversed the order and stated:

• No evidence showed immediate harm or a risk of flight.
• The court had violated the father’s procedural rights by failing to notify him.
• The mother provided no valid reason for avoiding notice.

This case illustrates the legal dangers of misusing an ex-parte custody order in Florida. It sets a clear precedent that parenting disagreements do not qualify as emergencies.

Best Practices Before Filing an Ex-Parte Custody Order in Florida

1. Consult an attorney: Florida law imposes strict standards, and professional guidance ensures proper compliance.
2. Document thoroughly: Collect verifiable records of abuse, threats, or medical concerns.
3. Use proper forms: File a verified motion that satisfies Rule 12.605’s procedural requirements.
4. Explain urgency: Justify how notifying the other parent would increase risk to the child.
5. Request a prompt hearing: Doing so minimizes due process concerns and accelerates resolution.

Conclusion

Requesting an ex-parte custody order in Florida is a serious legal step. Florida courts demand clear, immediate evidence of danger to the child and closely scrutinize each case. Misusing this tool may lead to legal setbacks and credibility loss. If you are considering or responding to such an order, work with a skilled Florida family law attorney to safeguard your rights and those of your child.