Ex parte motions, or “emergency” motions, are common in divorce and custody cases. Ex parte relief is requested when it is impractical or impossible to wait the minimum statutory period for the court to hear a “regular” motion. I was in the bank this week with my parents when the banker helping them wanted to know what “type of law” I practice.
I told her that initially I was a District Attorney with the County of Los Angeles and now have my own firm specializing in both criminal and family law. She indicated the father of her 4-year old son was just arrested for felony charges (criminal threats, assault etc.) and wants to know how she can ensure that her son is safe while their son is with the father.
I inquired whether there was a custody order in place which set the visitation period for both parents and she indicated there was and it was unmonitored. She further stated that when the arrest occurred, their son was present. Because of these new circumstances, she was afraid that her son could be in danger. She inquired how she can get the judge to hear her case immediately.
Another example is a client who recently came to the office again pertaining to the issues of custody and visitation. She came in last week, wanting to stop her husband from taking their 3-year old child outside of the United States for fear that he will not return. She wants a divorce and there is currently no custody and visitation court order in effect.
In both scenarios, an ex parte motion or application would be appropriate. Notice and the opportunity to be heard are the basic concepts of due process and everyone is entitled to it. The exception in family court would be emergency or exigent situations. The purpose of a request for emergency order 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 cases. The process is used to request that the court make orders to prevent immediate or irreparable harm, immediate loss or damage to property subject to disposition in the case or make orders about procedural matters such as continuing a trial date.
Since the other’s party may not have been provided with adequate time to prepare and was given a great deal of notice, ex parte relief has a “heightened” level of importance or need. Examples of urgent or critical needs are emergency protective or restraining orders, custody orders, terminating visitation orders for fear of your child’s safety, child abduction orders or immediate sale of a property.
However, there are specific guidelines for when and how this type of relief should be requested. A court will only grant relief for good cause. The party seeking a remedy must demonstrate irreparable harm, immediate danger, or some other statutory basis for granting relief. Before a party can bring this motion to court, a notice to the opposing party must be provided no later that 10:00 a.m. the court day before the intended ex parte appearance.
The person giving notice must state with specificity the nature of the relief requested and the date, time, and place of the hearing. Additionally, the party must attempt to determine whether the other party will appear and oppose the relief requested. Notice is by a telephone call to the opposing party/attorney and followed up with a fax or an email (if there is an electronic communication agreement). However, if the other party cannot be reached telephonically, leave a voice message and following up with a confirming email or facsimile with all the pertinent information, preferably, the complete motion attached.
A request for ex parte relief from the court must be made in a written application. In addition, a declaration must accompany the application that makes a factual showing of the need for the relief, notice provided and whether the other party will appear.
The party requesting relief must personally appear or his/her attorney (if represented). The judge has very limited time to read the papers before taking the bench so it is critical that the relief requested is clearly stated on the caption page and in the memorandum of points and authorities. Being concise will be appreciated by the judge or the bench officer.
The party opposing the ex parte application can orally oppose the relief without filing a written opposition. However, it is helpful to state in writing the reasons for your opposition in the case the judge has time to consider all the written pleadings before hearing arguments. Opposing papers may be filed directly in the department that the hearing will be held.
The application requires a filing fee and all applications must be filed with the family law clerk’s office at a certain time (usually by 8:00 a.m.) but definitely prior to the 8:30 a.m. calendar. Courts have different requirements so make sure you are aware of the various mandates.
Ex parte applications are often heard after the court’s morning calendar, so be prepared to wait. Counsel are required to lodge a proposed order that specifies the exact relief sought. The proposed order should also contain a few blank lines in case the judge has additional orders.
Ex parte relief is not meant to “cut in line” of the court’s calendar. It is meant for “emergency” type scenarios, in which immediate risk of irreparable injury will occur. Because of the technical aspects of the application, it is not an easy thing to do without an attorney, especially in light of the urgency. Any questions, call my office at 310-601-7144 or email me at [email protected]
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