Ex Parte orders

August 19, 2016 Parenting & Kids, Post-Divorce

How hard is it to go to court and have the judge or court commissioner sign an order, without a court hearing and without the other party being present to object?

The answer is “very” at least in family court cases, and the likelihood that the judge or court commissioner would sign such an order are not good.

“Ex parte” is a Latin legal term that can best be described as unilateral or one sided. The court in considering approving an ex parte order must be convinced that there are exigent and extraordinary circumstances to grant such an order. Yes, we have been successful in going to court and having the court approve them, but it really takes nearly an emergency situation for the court to consider it.

Courts do not particularly like them because most judges and court commissioners are very busy, and since this would not be scheduled  on their calendar, they have to take the time the time to read the motion and affidavit that describes why the request  being made; then they have to further assess and weigh the urgency of the order being sought, against the other party’s right to due process under the 14th amendment, to be provided notice and an opportunity to be heard, with issuing a unilateral, one sided court order, all without a formal hearing.

Then the court has to be concerned about scheduling an immediate court date to have the ex parte court order served on the other party and arranging for a court hearing in the space of 2 weeks or so, in order for both parties to appear in court, to determine if the order should be extended or dismissed.

I know you are going to ask under what circumstances the court might consider granting an ex parte order? Given the important legal and constitutional issues uncles with due process, expect for routine and ordinary issues in an average divorce case, the court is going to deny the request and not be particularly happy with you, that you wasted the court’s time by trying to get an ex parte order for what the court perceives is an ordinary routine issue in your divorce case, no matter how important you think the issue may be.

If there is some serious issue over the protection of minor children, that might arouse the court’s consideration for the granting of an ex parte order. If your spouse, by example has a history of domestic violence and now has threatened the children in some way, including sending you text messages or e mails about wanting to hurt themselves or the children, where the children might be in imminent physical danger, you arguably will be able to convince the court to issue an order to block the other parent’s placement with the children, pending a full blown court hearing, so the court can hear evidence from both parties to properly determine if the threat  is legitimate and there is a need to  protect the minor children.

An attempt to obtain an ex parte order, should not be taken lightly. A person is well advised to check with an attorney first, if they are pro se, to determine the viability of filing such a motion; if the party is already represented by an attorney, they cannot file motions on their  own, and must have their lawyer do it for them.

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