I had a case where my client resides with the minor child in Italy and the father is in California. Ex parte applications are the opposing counsel’s choice of “fast tracking” custody issues but all have been denied. In fact, I have requested and won my request for attorney fees and sanctions. It is critical that these applications are “used wisely” since not everything is an emergency. I know as the client, you may feel like it is, but the courts are not going to be forgiving if you circumvent the process.

Of course, I have had to file ex parte for domestic violence scenarios or placing holds on financial accounts, but I am very careful since frankly, judges have enough cases on their daily calendar. If you go in and your application is frivolous, you are going to court at your own risk.

Parties to a case are entitled to notice and the opportunity to be heard. This is the basic concept of due process. The exception in family law cases is in emergency situations. These type of situations means there is a heightened necessity to have it heard it immediately (the next day).

These types of situations could be requesting an emergency protective order, placing a hold on bank accounts for fear the funds will be transferred out immediately, possibility of destruction of property, fleeing with the child to another state or country. There are other situations, but they must meet the legal standard required.

What makes ex parte requests/hearings are that the short amount of notice provided to the other party. In California, Rules of Court (CRC) 3.1203 (a) requires notice no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice.

The procedure for an ex parte application or motion varies in each state. In some states, an ex parte application with declarations under penalty of perjury and exhibits to buttress the exigency is needed. In many states, you present your ex parte application to the court clerk, pay the necessary fees and be added to the court calendar on that day. In California, there are mandatory fees and a time cut-off when you must file the application.

As noted above the 1-day notice in California is required but no notice may be allowable under very narrow reasons. If you can prove to the court there is a serious risk of violence or transfer of assets if notice is provided, then no notice at all may be warranted. Since the application/motion was just provided to the court/judge on the same day, it must rise to the level of exigency.

After reviewing the paperwork, the judge will grant or deny in whole or in part, set the matter for a future date to allow a more thorough review and presentation of evidence, including testimony from the parties’ or witnesses. If it is a request for a restraining order, the judge will grant or deny, in part or entirety and provide you with a temporary order. The court will then set the matter for an evidentiary hearing in the future to determine whether the restraining order should be permanent.

If you are provided the 1-day notice and you have the opportunity to file opposing documents, the judge will also consider your objections. Based on the pleadings before the court, the judge upon finding of exigency will rule on the application. If the court denies the application, a request for order can be filed and the case would be set for a future hearing.

The question for many is what constitutes an emergency? I have cited some situations that is spelled out in CRC 5.151, which states, “the purpose of a request for emergency orders is to address matters that cannot be heard on the court’s regular hearing calendar. In this type of proceeding, notice to the other party is shorter than in other proceedings. Notice to the other party can also be waived under exceptional and other circumstances as provided in these rules.”

Pursuant to CRC 5.165, “if a party ask the court to waive notice to the other party/attorney, that party must file a written declaration signed under penalty of perjury that includes facts showing good cause not to give notice. A judicial officer may approve a waiver of notice. Which may include: (1) notice would frustrate the purpose of the order; (2) notice would result in immediate and irreparable damage to or loss of property subject to the disposition in the case; (3) the parties agreed in advance that notice will not be necessary with the respect to the matter that is the subject of the request for emergency orders; (4) and the party made reasonable and good faith efforts to give notice but efforts were futile or unduly burdensome.

An ex parte application should not be filed because a party wants immediate orders. Without immediate danger or irreparable harm, the court does not have the power to make such orders. Unfortunately, many spouses, parents and even attorneys will bring frivolous ex parte application, but it is a waste of court’s time and money. Knowing when to go to court or not on an ex parte basis, is one reason a family law attorney’s advice is important.

If a party is interested in getting a quicker date, an ex parte seeking an order shortening time could be filed but the requesting party must prove that an irreparable harm or immediate danger exists. Many judges will also read the ex parte application in chambers so your documents must be compelling to warrant such orders.

If you have any questions, you can reach me at 310-601-7144 or email me at [email protected] To receive updates on legal matters, please like my Facebook Page: https://www.facebook.com/attycarinacastaneda/ or follow me on Twitter: @AttyCastaneda and Instagram: @atty.castaneda.

CategoryLegal Advice
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