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Family Law Ex Parte: Ex Parte Motions in Divorce, Parenting and Child Support Cases

Posted by attorney Christopher Buck

Ex parte motions, or "emergency" motions, are exceedingly common in divorce and custody cases, much to the chagrin of Circuit Court judges. Literally meaning "without the [other] party," ex parte motions look like an attractive option for litigants who feel a sense of urgency about their claims. They have been widely adopted by many pro se (self-represented) litigants, because of their ease to file and the perceived instant relief they may afford. To some extent, lawyers may also file them to get cases heard immediately.

A person would generally want to file an ex parte motion, because they receive priority in the Court scheduling. A litigant who travels to the Court house with an ex parte motion will get some kind of ruling that same day, even if it's a ruling dismissing the motion. Upon receipt of the motion, the court staff will find a judge, who may be wrapped up in other matters, eating lunch, or preparing to go home, and put the matter in front of them. This "inconvenience factor" alone is one of the most significant reasons why so many ex parte motions are denied.

So why do litigants, especially those in the Family Division, continue to file so many ex parte motions each and every day? One reason is likely a misunderstanding over the word, "emergency," which the NH Judicial Branch uses as the parenthetical title of the ex parte motion form, i.e., "Ex Parte (Emergency) Motion." What is an "emergency" to a concerned parent may not be an "emergency" to the court, and indeed the two are more frequently dissimilar.

In New Hampshire law, an ex parte motion is appropriately pled if it clearly describes an "immediate risk of irreparable injury," which will result if the motion is not granted. Notice that the phrase does not mention the word "emergency." In light of this "irreparable injury" standard, the reason for ex parte motions becomes quite clear - they serve to provide immediate relief in situations where scheduling a hearing, and providing notice to the other party, are just not feasible. In general, every litigant has the right to reasonable notice. Parents have the right to know about actions that may deprive them of parenting time; parties to a divorce have the right to know about actions that may require them to pay alimony, or forfeit their right to marital property... These are all aspects of the general concept of "due process" in the family court system. Ex parte motions should be limited to only the most dire situations, or what are sometimes referred to as "bona fide emergencies" by family law attorneys. A bona fide emergency is simply one that meets the standard of proving that an irreparable injury will occur if the motion is not granted.

  • Inappropriate Uses of Ex Parte Motions:

No Bona Fide Emergency

The first most common and inappropriate use of an ex parte motion, therefore, is one in which the body of the motion does not even allege that an immediate risk of irreparable injury will occur. For example, the basis for the motion might be that "the other party did not follow our parenting agreement." It might also refer to a past harm, which, logically, cannot serve as a "risk" of future harm. An example of this might be a party claiming that the other harassed them, argued with them, failed to make an alimony support payment, etc. Whatever the harm is, it has already occurred, and the consequences of one party's malevolent actions are not likely to extend beyond the occurrence into the future. Motions that do not plead any injury, or that only plead a past injury, are likely to be swiftly denied.

As a Contempt Motion

Where the court orders a party to do something (such as take the kids 3 days a week, pay alimony or child support, or refrain from contacting the other party), that person remains under an obligation to follow through with the court's order unless and until it is amended. When a party fails to obey the Court's order, they may be subject to a contempt motion. The family courts will rarely find a litigant "in contempt" unless a motion is brought by the other party requesting them to do so.

Contempt motions are inappropriate uses of ex parte pleadings. The reason why is that contempt motions bring with them the possibility of more significant sanctions. A person found in contempt may be jailed for every day they remain in defiance of the court's order. Since their liberty may be deprived of them, and they may be punished in a quasi-criminal way, people who are the subject of contempt motions have more substantial rights to notice of the proceeding against them. In general, a motion for contempt must receive a hearing, and notice must be served upon the other party. This explains why a contempt motion cannot be brought to the court ex parte, because it denies the litigant proper notice and potentially would involve a substantial deprivation of liberty.

Despite the lack of notice, some few courts among the Family Division still allow contempt motions to be pled ex parte. This is probably attributable to an error among the clerks, and is likely not a sanctioned practice by the judges and marital masters. Nevertheless, the Cannon of Judicial Ethics mandates that a judge is responsible for the actions of their clerks, and so a contempt motion that is heard ex parte should be a prime candidate for a successful appeal to the State Supreme Court.

To Circumvent Notice Requirements

A strategic incentive for submitting an ex parte motion may be to deny the other party of an opportunity for notice. This unfortunate strategy is commonly found in parenting and "custody" cases. One parent decides to submit a motion alleging that the child will suffer a trauma because of the other parent's negligence or malevolence, and attempts to obtain temporary "custody" over the child with the court's cooperation.

Courts are generally on guard for such actions, and they recognize that the impulse to submit an ex parte motion may be too great, and the prospect of immediate relief too tempting for many people to ignore. They must remain on guard, though, because a successful ex parte motion, one which is granted where it should not be, can drastically change the course of the remaining litigation and can have negative repercussions that can last for years, even a lifetime. There are some bells that cannot be un-rung, and if parties can achieve physical control over a child based on an ex parte motion that should never have been granted, the potential for disaster is enormous.

  • Appropriate Uses of Ex Parte Motions:

To Protect Children

Despite all that has been said, there are certainly appropriate uses of ex parte motions, and many cases where they should be granted. A threat of violence against a child is such an instance. Because of the foregoing concerns, courts should be vigilant in requiring some sort of proof of the threat, not just the moving party's account, and litigants should be prepared to present such proof to the court at filing. A recorded voicemail with a date stamp would be the ideal form of proof. Regardless of the type of evidence submitted, where an irreparable risk to a child is clearly shown, the court's will approve the ex parte motion.

As one might assume, the willingness of courts to grant ex parte motions without a further hearing diminishes as the threat of "irreparable injury" to the child grows more abstract. Some courts may grant the motion based on a lack of child support payments, but others won't. Some courts may grant the motion based on truancy from school, and others won't. Where the potential injury is not physical, litigants would do well to consult an attorney in the hopes that they can craft a good argument as to why the court should grant the immediate relief. Attorneys can add a great deal of value in drafting ex parte pleadings anyway, even if they do allege the threat of violence or physical harm.

To Prevent Personal Injury

One method of using ex parte motions appropriately is in conjunction with a Domestic Violence Restraining Order petition. Since a DV restraining order petition already alleges that there is a risk of irreparable injury to the plaintiff, one might ask why an ex parte motion would be submitted concurrently. The reason may be to protect one's interests with respect to an ongoing divorce or custody case, using the incident of recent domestic violence as the basis for submitting the motion. An example might be a spouse who receives a phone call containing a threat of physical harm, and then submits an ex parte motion to the Family Division court requesting temporary custody of the parties' child.

Significant Financial Injury

Differences of opinion exist between attorneys, and even between judges, as to whether the immediate risk of irreparable financial injury should form the basis of a well-pled ex parte motion. In the most drastic cases, where a family will not eat if the relief is not awarded, one can reasonably expected the motion to be granted. However, the unfortunate reality is that there is a bias towards viewing "physical" harm as more impactful and intolerable than "financial" harm. Perhaps family court judges are de-sensitized to the financial difficulties of litigants, hearing case after case concerning one party's failure to provide for the other, and seeking support orders from the court. Perhaps the legislature needs to clarify that irreparable financial injury deserves to be treated more seriously. While it is never likely to achieve the stature of physical injury, financial injury should not be overlooked or ignored.

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