Florida Family Law Rules of Procedure Form 12.941(d) may be used by a parent or guardian to file an emergency verified motion for child pick-up order. However, this form should only be used when there is an emergency by a person who already has a pre-existing legal right to have physical possession of a minor child in the state of Florida.
It is important to understand who has a pre-existing legal right to physical possession of a minor child in the state of Florida. Presumably it is the mother of the child, absent any court order stripping them of their parental rights.
Also, a person who has a court order awarding legal custody or timesharing of a child will also have a pre-existing legal right to possession of the minor child. If a child is born out of wedlock, and there is no court order that provides another person parental rights, that person has no pre-existing legal right to physical possession of the minor child –even if they have signed the child’s birth certificate.
As of July 1, 2023, Florida has effectively recognized that when a father, who is not married, signs an acknowledgement of paternity and is also named on the child’s birth certificate there is a presumption that he is the legal father of said child. This acknowledgement of paternity, and the father’s name on the birth certificate, gives the father equal rights and responsibilities to the child. There becomes a legal presumption that the father is a natural guardian of the child with a legal duty to financially support the child.
Types of Emergency Orders in Florida
There are two types of emergency orders that may be issued in the state of Florida:
- Ex-parte order: Made without providing notice to the other parent and typically granted if there is an immediate danger to the children involved.
- Standard emergency motion: The other parent is provided notice, but the order is expedited to ensure the safety of the children involved.
If the court awards an emergency child pick-up order without advance notice provided to the other parent or guardian of the child, the order may be taken to your local sheriff’s office for further assistance on executing the court’s order. Even if the order is issued without advance notice to the other party the emergency verified motion for child pick-up order must be served by personal service on the other party.
If the court refuses to enter an order without advance notice to the other party, it is important that you check the website of your local judicial circuit for information on the procedure to schedule a hearing on your emergency verified motion for child pick-up order. Once a hearing is set, you will be required to file a notice of hearing so that the other party has an opportunity to be heard on the issue.
Preparing for the Hearing
Before you arrive at the hearing you should check with the clerk or judicial assistant of the judge assigned to the case to see if you need to bring a blank order form with you. If so, you should type or print the heading, including the circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to complete at the conclusion of the hearing.
In addition to bringing a blank order it will be helpful to bring any relevant text messages, police reports, medical records, and even financial records which may be used to show the instability or danger of your child’s living situation.
Jurisdiction: The UCCJEA
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is used to determine the jurisdiction over the children involved when a motion for an emergency custody order is filed in a Florida court. The UCCJEA gives jurisdiction to the state in which the children have been living for six months prior to the filing of the motion. If the children involved in the emergency motion have not been in the state of Florida for the six months prior to the filing, it is important you review the UCCJEA to determine the correct state that has jurisdiction over the children.
Legal Grounds for Filing
The legal grounds for filing an emergency custody order in Florida are issues which concern the best interest of the child being violated such as the threat of child abduction, domestic violence involving the child, neglect, child abuse, and other reasons as may be found by the court. A judge may also issue an emergency custody order if there is medical neglect, emotional abuse, physical abuse, or sexual abuse to the minor child. When the parent of the child presents immediate harm or danger to the child due to their living conditions, substance abuse issues, or even criminal activity the judge may consider this enough to remove the child.
Filing With or Without a Lawyer
A lawyer may assist you with filing the emergency verified motion for child pick-up order or may be retained to handle the child custody issues altogether You are also able to file a motion without the help of a lawyer. Before proceeding with this option, it is important to read the general information for self-represented litigants. There may also be additional resources to assist with the filing on the website of your local judicial circuit clerk of court.
Supporting Documents
In addition to the Florida Family Law Rules of Procedure Form 12.941(d) you will need to provide supporting documents with your filing such as a certified copy of the child’s birth certificate. If there is any judgment establishing paternity, custody, or time-sharing for a minor child you will need to bring a certified copy of the judgment. If applicable, you will also need to provide a certified copy of the court order granting you legal custody or time-sharing with the minor child.
Please call O’Mara Law Group to schedule a free initial consultation if you’re interested in learning more about Florida’s Romeo and Juliet law, and what it means for young defendants.
