Ex Parte Hearings in Family Law Court

What Does Ex Parte Mean?

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The phrase ex parte is a Latin term meaning ‘from one side.’ In a legal context, the term ex parte describes a situation where only one side to a legal action communicates with, or presents evidence to, a judge, and almost always in an emergency situation, and often with little or no notice of the court hearing to the opposing party (opposing litigant).

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A request to have a judge hear a legal matter ex parte is only allowed in situations where court orders are necessary to prevent an imminent, irreparable, and significant harm. Without imminent and irreparable harm allegations, it would be legally unfair to the opposing side to hear a legal matter ex parte.

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For example, a request for domestic violence restraining orders (DVRO) is usually heard by a judge on an emergency ex parte basis. The reason for ex parte hearings in DVRO cases is clear: without emergency orders that are not divulged in advance to the opposing party, irreparable harm could come to the victim(s) of the alleged domestic violence.

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Note: Court orders that are made at an ex parte hearing are enforceable by law just as though those court orders were made at a non-ex parte hearing. This is true even where the opposing litigant had little or no opportunity to respond to the requesting party's request.

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Emergency Requirement

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As stated, “ex parte” does not mean emergency; however, almost all ex parte hearings are heard by the court on an emergency basis. This is why most non-lawyers refer to an ex parte hearing as an emergency hearing, and vice versa, but technically, an ex parte hearing may be heard for non-emergency issues as well (i.e. where opposing side cannot, or does not, want to be part of the litigation, non-legally relevant communication with a judge [i.e. calendaring, etc.]).

 

In fact, in order for a litigant to be heard on an emergency ex parte basis, the requesting party must request to be heard ex parte and request to be heard on an emergency basis (application for emergency orders).

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Note: Legal forms in family law often combine both the request to be heard on an ex parte basis and the request to be heard on an emergency basis. The most common use of these combined requests is found in California domestic violence restraining order forms (i.e. Legal form DV 109, DV 110, etc.).

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Common Ex Party Issues

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To Protect a Child: Ex parte orders are typically granted on an emergency basis where there is an allegation of child abuse, child neglect, or possible child kidnapping (child abduction), and the requested orders are necessary to protect the child from imminent and irreparable harm.

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To Prevent Personal Injury: Ex parte orders are typically granted on an emergency basis where those orders are necessary to prevent imminent and irreparable physical injury to an adult.

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To Prevent Financial Harm: Ex parte orders are typically requested where significant financial injury is imminent and irreparable.

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For example, ex parte hearings on an emergency basis are common where one party claims that his or her spouse is purposefully destroying or spending community property before the court has divided the marital assets in a divorce case, or where a person will have no means to provide for himself or herself, or his or her child, without emergency spousal support or child support orders.

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Ex Parte Procedural Issues

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Ex parte hearing requests are more common with certain legal procedures, including: motions to quash (cancel) a subpoena, motions for more time to file responsive answers, motions to allow shorter notice of a hearing, request for domestic violence restraining orders, etc.

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Note: Procedural ex parte hearings are almost exclusively used by attorneys, as opposed to non-attorneys who represent themselves in family law matters. Procedural issues are less likely to be heard on an ex parte basis even if the hearing may held on an emergency basis.

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Temporary Relief

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As stated, ex parte hearings are usually heard on an emergency basis (within a few days of filing the request for hearing on a legal matter). This means the opposing party has very little notice, or no notice, of the requested court hearing, and therefore, no time to adequately respond to the allegations.

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For this reason, most court orders made at an ex parte hearing, if any court orders are made at all, are temporary orders. A temporary court order means that the court orders will remain in place only until a full evidentiary hearing is held where the responding party has had sufficient opportunity to effectively respond to the allegations.

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For example, in a DVRO case, if the judge grants petitioner’s request for orders of restraint against the opposing litigant, either ex parte or non-ex parte, then those orders are only valid for twenty-one days (temporary orders). After twenty-one days those DVRO expire, unless there is some legal justification for extending the duration of those temporary orders. In order for those temporary orders of restraint to become permanent orders of restraint, the opposing litigant must be given a fair opportunity to prepare a defense to the petitioner’s DVRO request.

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Requesting Ex Parte Hearings

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To file for a request for an ex parte hearing and/or request for emergency court orders, the requesting party must complete several required ex parte and/or application for emergency orders legal forms, along with declarations that support the reason(s) for the court hearing to be heard on an ex parte basis.

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The legal forms to be heard on an ex parte basis, and the legal forms related to an application for emergency orders, require all of the following:

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• A full description of the need for the ex parte and/or emergency orders and how irreparable and immediate harm will result without the requested court orders;

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• The identity and contact information of all the parties involved (including attorneys, CPS, Juvenile Dependency Court, etc.);

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• The status and dates of any previous and current orders concerning the same issue, even if the facts are different on prior applications for ex parte or emergency court orders; and

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• A description of the time and type of notice, if any, that was given to the opposing party, and whether or not the opposing party intends to object to the request (if known), or a full description of why the opposing party should not, or could not, be notified.

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Ex Parte Notice Requirements

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A litigant may ask the court to waive the regular notice requirements of ex parte and/or emergency orders request, if:

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• Giving notice to the opposing litigant would frustrate the purpose of the request;

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• Giving notice to the opposing litigant would result in immediate and irreparable harm to the applicant, or to the children for whom the order(s) was sought;

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• Giving notice to the opposing litigant would result in immediate and irreparable loss of property; or

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• The litigant requesting a waiver of regular notice made reasonable and good faith efforts to give notice to the opposing litigant and further efforts to give notice to the opposing litigant would probably be futile or unduly burdensome.

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Minimum Notice: If the court does not grant a waiver of the notice requirements related to ex parte and/or emergency hearings, then notice of the ex parte and/or emergency hearing request must be made to the opposing litigant no later than 10:00 a.m. the business day before the expected hearing. Notice may be made by phone or writing, or both.

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Note: Required advance notice could be even longer in non-DVRO cases where the judge is unwilling to waive the notice requirement for ex parte hearings.

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Also, notice should be made by someone other than the person requesting the ex parte and/or emergency court hearing. Finally, if the opposing litigant is represented by an attorney, and the person requesting an ex parte and/or emergency court hearing knows that the opposing litigant is represented by an attorney, then notice of the court hearing should be made to the opposing litigant’s attorney, if possible.

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Note: A party seeking ex parte and/or emergency orders must serve any moving papers related to the petitioner’s request for orders on the opposing litigant at the first reasonable opportunity before the hearing. In practice, this often happens only moments before the court hearing where the legal paperwork related to petitioner’s request for court orders is handing to the opposing litigant by the court's deputy in the court room.

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Presenting Evidence at Ex Parte Hearings

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Family law judges may, and often do, rule on the ex parte application based solely on the filed paperwork; however, most judges will allow some oral testimony and impeachment evidence in defense (opposition) to the request for ex parte and/or emergency orders (if opposing litigant appears at the court hearing).

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Custody and Parenting Time Disputes

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Ex parte requests for modification of child custody and/or parenting time (child visitation) orders will usually result in emergency mediation (often on the same day of the ex parte hearing).

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For example, if the court hears a request for domestic violence restraining orders on an ex parte and emergency basis, then the court will usually send the parties to family court mediation as soon as possible after the court makes its orders on the petitioner’s request.

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For more information on Ex Parte Hearings and Application for Emergency Orders, contact our experienced and successful divorce and family law attorneys today for a free consultation. Our lawyers have successfully handled hundreds of family law cases with a combined experience of over three decades in the Inland Empire. We routinely handle court hearings heard on an ex parte basis related to child custody, DVRO, juvenile dependency court petitioners, fathers’ rights, paternity suits, move away request, and more. Call today! 

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909-307-2645

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