The Ex Parte Temporary Custody order and Irreparable Harm

Posted over 2 years ago. Applies to Michigan, 1 helpful vote

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An ex parte order is an order that is obtained by one party at the request that the opossing party not be provided notice to be present or allowed to be present because the facts and circumstances of the case are such that the court should enter the order to maintain the status of the case pending the court's ability to hear the full story. There are two key factors that come into play when a court decides whether or not an ex parte temporary custody order is necessary.

The first key factor is whether the court is being asked to keep things as they have been or change the status quo. A court is much more apt to maintain the status quo of the case, rather than enter an order without allowing the otherside to contest when the court is being asked to change things. For instance, when a father and a mother decide to end their relationship the mother automatically has full legal and physical custody of the child(ren). This is so until a court enters a custody order regarding the child(ren) that are the bi-product of the relationship. Until such an order is in place a father must give his children back to the mother upon her request or face potential criminal liability for parental kidnapping, or have that behavior used against him in a contested custody dispute.

There are several factors that may provide grounds for a father's request for an ex parte temporary custody order. A father may seek an ex parte order for temporary custody if the mother is involved with drugs and alcohol, mentally unstable, has abandoned the children with father, or has excercised sporadic or infrequent parenting time. A father may also seek to prevent the mother from changing the child's residence pending resolution of custody if there is a serious concern that the mother may remove the child(ren) from the jurisdiction of the court before the court has time to exercise proper jurisdiction over the matter.

The second key factor is exigent circumstances or the threat of irreparable harm. This is a necessity before a judge will entertain the possibility of entering an ex parte order. In this case it would be necessary that the petitioner is able to demonstrate reasonable cause to believe that the child(ren) will be harmed or that the parent will suffer irreparable harm if the court does not act immediately to prevent such harm. There is no definite threshold showing of exigent circumstances or irreparable harm, however judges know it when they see it. Moreover, this is why it is important that you not seek such orders out without first consulting with an experience attorney that will be able to evaluate your case and identify the factors that are most relevant in achieving the result that you want.

Scott G. Millard

Miel & Carr, PLC

(989) 831-5208.

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Miel & Carr, PLC

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