Ex parte motions, or “emergency” motions, are common in divorce and custody cases. Ex parte relief is requested when it is impractical or impossible to wait the minimum statutory period for the court to hear a “regular” motion.
Ex parte motion or application
I was in the bank this week with my parents when the banker helping them wanted to know what *type of law* I practice. I told her that initially I was a District Attorney with the County of Los Angeles and now have my own firm specializing in both criminal and family law. She indicated the father of her 4-year old son was just arrested for felony charges (criminal threats, assault etc.) and wants to know how she can ensure that her son is safe while their son is with the father.
I inquired whether there was a custody order in place which set the visitation period for both parents and she indicated there was and it was unmonitored. She further stated that when the arrest occurred, their son was present. Because of these new circumstances, she was afraid that her son could be in danger. She inquired how she can get the judge to hear her case immediately.
Another example is a client who recently came to the office again pertaining to the issues of custody and visitation. She came in last week, wanting to stop her husband from taking their 3-year old child outside of the United States for fear that he will not return. She wants a divorce and there is currently no custody and visitation court order in effect.
In both scenarios, an ex parte motion or application would be appropriate. Notice and the opportunity to be heard are the basic concepts of due process and everyone is entitled to it. The exception in family court would be emergency or exigent situations. The purpose of a request for emergency order is to address matters that cannot be heard on the court*s regular hearing calendar.
Ex parte relief
Since the other*s party may not have been provided with adequate time to prepare and was given a great deal of notice, ex parte relief has a *heightened* level of importance or need. Examples of urgent or critical needs are emergency protective or restraining orders, custody orders, terminating visitation orders for fear of your child*s safety, child abduction orders or immediate sale of a property.
However, there are specific guidelines for when and how this type of relief should be requested. A court will only grant relief for good cause. The party seeking a remedy must demonstrate irreparable harm, immediate danger, or some other statutory basis for granting relief. Before a party can bring this motion to court, a notice to the opposing party must be provided no later that 10:00 a.m. the court day before the intended ex parte appearance.
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