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. For example, a new client came in last week, wanting to stop her husband from taking their 3 year old 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 this scenario, an ex parte hearing would be one of the avenues I recommend.
However, there are very 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 should be provided by phone call—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.
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 usually 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.
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 opposing in the event the judge has time to consider them before hearing arguments. Opposing papers may be filed directly with 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. Counsels 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 need. Call my office at 310-601-7144 if you need immediate help.
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