How Do I Get an Emergency Family Law Restraining Order? STAFF PICK

Carolyn Annette Elsey

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Family Law Attorney - Sumner, WA

Contributor Level 15

Posted about 5 years ago. Applies to Washington, 11 helpful votes

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1

What is an ex parte restraining order?

This is an order issued by the court in emergency circumstances to prevent some kind of injury. It can prohibit contact between people (and kids), prevent financial harm, or maintain a legal or financial obligation. It's an order that is decided after a very brief hearing. Notice to the other side is usually required. The order itself is good for 14 days and requires that there is another hearing at the end of that 14 days. The idea is that the person being restrained had no real opportunity to contest the ex parte order so in all fairness the court will decide whether to keep the restraints in place once the other side gets to submit their position to the court and the court has the opportunity to thoroughly review everything. At the 14-day hearing the court can terminate the restraints, modify the restraints or add new ones, or can simply maintain the status quo. Once the case goes to trial, the trial judge can also terminate, modify/add, or maintain the restraints as well.

2

Legal Standards

Ex parte restraining orders can be had in all family law cases. In divorce cases where property is at stake, the court can order that insurance and other policies be kept in force, that no one dispose of property, and forbid new debts. In all cases, the court can prohibit coming to the other parent's home, workplace or school; prohibit harassment or stalking of the parent or child, forbid the removal of the child from the court's jurisdiction, and restrain the other parent from going to the child's school or daycare. To get these restraints, the parent has to fill out the correct forms and provide as much supporting documentation as possible at the time he/she seeks the ex parte restraining order. Don't save the additional stuff for the 14-day hearing. The court won't look at it then. You also have to give notice that you are seeking this order. Only if you can show immediate, irreparable harm do you not have to give notice. Courts don't like orders with no notice. Avoid this!

3

Going to Court

Have your motion and all your supporting documentation ready when you go to court. Do not bring people to testify. They need to fill out declaration forms. Get notice to the other side. The real focus is on why it's an emergency, why can't you just set a motion and wait 14 days. That's what you need to address. If the court grants your request, have your order ready. The court may not do everything you want or may some up with some other restraint you didn't think of. If the court makes changes to your order, DON'T MAKE ANY OTHER CHANGES! The court gets to decide what the rules will be for the next 14 days. Don't go to another judge if you don't like what the ex parte ruling. Judge-shopping is terrible. If you live in a place where family law motions are heard only on certain days, make sure you have the court clearly state on the order that it's good until the scheduled hearing date. The other person should get a copy of the order immediately.

4

What do I do with this order now?

If the order affects the children and prohibits the parent from going to a school and/or daycare, make copies of the order for each school/daycare. They don't need to be certified copies (that's too spendy), they just need to see the order themselves and know what they can and can't do. If the order addresses financial issues, keep extra copies in case there's any issues with companies affected by the order. For example, the other parent is required to keep your auto insurance in effect and they try to cancel your policy. You can mail or fax a copy of the order to the insurer so that they won't cancel the policy. Many companies such as insurance, banks and utilities are very accustomed to these orders. Always keep a copy of the order with you at all times if it addresses children.

5

The 14-day Hearing

Once the hearing comes, you will have (presumably) gotten a written response to your requests. Then you go to court and present your position. Don't add new information (unless it pertains to attempts to violate the order) and don't come in with new documents no one has seen before. The issue is whether the restraints you asked for should be extended beyond the 14 days. Often the person restrained will waste a lot of time and energy complaining about being the "emergency" nature of the order. That's pretty pointless. Don't let yourself get drawn into that argument. Just focus on why the restraints should remain in place. The court has the ability to grant that request, modify the restraints, or deny your request. If your request is denied, then there are no more restraints. Everything goes back to the way it was. You can still file a motion for relief and have a better case. Denial doesn't forbid you from asking for help in the future.

Additional Resources

Ex Parte Restraining Order Statute--Divorce

Ex Parte Restraining Order Statute--Non-parental Custody

Ex Parte Restraining Order Statute--Unmarried Parents

Superior Court Civil Rule 65---See section b

WA Court Forms--full list for all case types

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Related Topics

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Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Divorce and Orders of Protection

It is sometimes necessary for a married person to file restraining orders against his or her spouse prior to, during, or after a divorce.

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