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Jeremey McNinch, divorce attorney in Gulfport


By:  Jeremy P. McNinch

In today’s society, it seems like we are living life in fast forward.  Everything is urgent, and the ever-increasing technological upgrades move us along swiftly – often times, involuntarily.

Staying in constant contact has become a critical part of our everyday lives.  If we get a text, we have to answer it right away.  If we get an email, we feel the need to drop everything we’re doing and respond immediately.  We want results, and we want them now.  But if we take a minute to breathe and think, we will often find that the world doesn’t end if we don’t react right away; it isn’t actually as pressing as we thought.  Don’t get me wrong, some things are urgent and need immediate attention.  But happenings in our lives can be extremely important without being actual emergencies.

Domestic relations matters can be like that:  they can take over the parties’ lives and send them spinning out of our control, bringing out emotions they didn’t know existed.  But that’s ok.  It’s normal.  It’s human.  And while we are often overcome with our present situation, it’s crucial to recognize the difference in what may be time-sensitive, possibly expedited, and an actual emergency.  In other words, what’s an emergency, and what’s not?

Clients often feel that their cases are emergencies, and it’s absolutely understandable for them to feel that way- the entirety of each case is extremely important, and the experience and the outcome will change the client’s life forever.  Unfortunately, though, legal “emergencies” aren’t judged subjectively.

An emergency situation is only one in which irreparable harm, damage, or loss will occur if it is not resolved right then and there.  In the domestic relations context, emergency situations usually involve some sort of abuse that is imminent.  If you have an actual emergency, a party can utilize Rule 65(b) of the Mississippi Rules of Civil Procedure (MRCP) to obtain a temporary restraining order (TRO), or in some cases, another order, such as a temporary order of custody.

Under Rule 65, the chancellor has authority to issue a temporary restraining order against a party if he/she finds, from specific allegations that “immediate and irreparable harm will result otherwise.”  Generally, the purpose of a TRO is to provide temporary short-term relief until further action can be taken in the case. Usually, these types of orders can only last up to ten days, but in domestic relations cases, the ten-day requirement does not apply.  If a party can show, by affidavit or verified complaint, that there will be immediate and irreparable injury before the adverse party can be heard in opposition, the adverse party need not be notified, and the petitioner may proceed ex parte, meaning the petitioner can go see the judge as soon as he’s available.

The Mississippi Supreme Court and Court of Appeals have both laid out examples of what constitutes emergencies- at least in relation to proceeding in this manner under Rule 65.

In EJM v. AJM, a grandmother proceeded under Rule 65 when she learned her grandchild was being sexually abused.  The chancellor properly issued a temporary order for custody to the grandmother, as “the chancery court, as guardian of all minor children in its district, is vested with authority to temporarily grant custody pending an investigation by a court appointed guardian ad litem.”  The Court of Appeals affirmed the chancellor’s decision.  EJM v. AJM, 846 So. 2d 289 (Miss. Ct. App. 2003).

The Court of Appeals also affirmed the issuance of a TRO and award of temporary custody to the natural father when he filed an emergency petition alleging his minor children were living in a harmful environment where the stepfather served the minors beer to put them to sleep, and beat them if they did not call him “daddy.” CM v. RDH, Sr., 947 So. 2d 1023 (Miss. Ct. App. 2007).

Mississippi’s appellate courts have also ruled on issues that are not actual emergencies, such as a mother’s receipt of welfare funds, which is not of the “urgent and necessitous” circumstance that requires an emergency order of temporary custody.  A parent filing to bring minor child(ren) back to their “home state” after they had already moved with the custodial parent is also not an emergency situation properly brought before the Court under Rule 65.  Robinson v. Robinson, 481 So. 2d 855 (Miss. 1986).

Just because something isn’t an emergency, doesn’t mean it isn’t extremely important.  Children will always be extremely important.  Your relationship with your spouse will always be extremely important.  Even though your case might not qualify as a legal “emergency,” it still may qualify for an “expedited” hearing under Rule 81(d) of the Mississippi Rules of Civil Procedure, which allows for hearings within seven (7) or thirty (30) days after the defendant is served with process, depending on the type of issues involved.

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