What is Ex Parte?
Ex Parte is a Latin term that means literally "by the one part." It is generally used to refer to when something is done or produced by one party to a case without having to involve the other parties. In a sense, ex parte is the antithesis of the phrase "due process." Most of us are familiar with that idea that in order for a court to take action in your case, you have to be given notice and an opportunity to be heard before that decision is made. Without notice, you are not given the opportunity to provide the judge with the evidence you have, and the issue is one-sided.
We see this in a lot of areas of the law where certain types of protective orders are issued immediately, without notice to the person against whom they are sought, but that action is allowed because the law provides for it. The law treats the matter as an emergency and there is no time for the other party to be given proper notice and an opportunity to be heard.
In the context of family law, however, we don’t see very many examples of ex parte motions. In Virginia, we do not have a form for temporary or preliminary injunctions, and it is common that the court will not sit down and hear a motion without the other parties being present, or at least notified. One primary example that a lot of people can relate to is a motion for pendente lite spousal support. Usually that is heard on the merits and not on an ex parte basis. We often talk about the fact that the pendente lite spousal support hearing is the most important and one of the most expensive hearings that a person will engage in, and so you want to put your best foot forward to ensure that you win the judge over.
Because ex parte motions are so rare in the family law context, this is something that many lawyers are not familiar with either. Those who strictly work within one area of the law may only occasionally come across an ex parte motion, so they may not have had much experience arguing the merits of these kinds of motions . I have personally handled very few, but the few that I have heard I went ahead and argued, because I always like to give anything I am doing my best shot. Now that I am aware of how an ex parte hearing is conducted, I probably wouldn’t do it again. I would defer to one of my colleagues who does a lot of injunction work.
This does not prove to be a very convenient motion to participate in. It is quick, often lasting only a half hour, and parties are not given an opportunity to present a defense. It really feels like an uphill battle from the start. In my experience, it is more common in domestic violence cases in which a protective order is sought. The request is on an emergency basis because stalking exists, or physical violence is occurring, and the court cannot wait several weeks to then hear the merits of why the protective order should or should not be issued.
There are two different types of ex parte motions: pure ex parte motions, and ex parte hearings. A pure ex parte motion is when a person shows up to the clerk’s office, files their motion, and has the clerk immediately issue an injunction, for example, without any notice to the other side, and without them being present. An ex parte hearing is when the attorney files the motion, serves the other party through the sheriff, and is then given a quick hearing in which the judge hears their oral argument, looks at the documents and makes a decision on whether to issue the order on a temporary basis.
The bottom line is that most ex parte motions do not have a place in the family law world, except for the rare event that a party cannot get proper notice to serve the other party with the motion. If you’re interested in the ex parte motion to be conducted, you will want to get that filed immediately. Most judges will be tolerant of a short hearing in order to perhaps avoid the filing of a lawsuit, and they will at least hear the emergency situation and consider your petition.
How Ex Parte Operates in Family Court
The typical scenarios in which ex parte motions are used in the family court context include: (1) Orders of Protection pursuant to the Family Offenses provisions of the Family Court Act, specifically Article 8 (domestic violence) and Article 10 (Child Protective Act); (2) divorce actions in which one party is seeking to get temporary monetary relief pending entry of a final judgment in the matrimonial action; (3) where matrimonial actions temporarily suspended due to the COVID-19 pandemic are reopening; (4) child custody and visitation proceedings; and (5) matters involving neglect, abuse or the potential abduction of children.
Specifically, in New York, ex parte orders may be utilized in Article 6 (guardianship), Article 7 (termination of parental rights), Article 8 (family offense), Article 10 (child protective proceeding), Article 10-a (release of child who has been taken into custody because of risk of harm), Article 11 (custody and visitation), and Article 11-a (abduction of children). New York law prohibits ex parte orders in Article 4 (child support), Article 5 (child custody), Article 5a (paternity), Article 5-b (DNA testing), and Article 6-a (spousal support and distribution of marital property).
Although usually only the respondent against whom the order is sought may request such an order, the court may grant an order sua sponte if it appears to the court that the health, safety or welfare of a child would be substantially endangered by the delay which would necessarily occur if prior notice were given. In such event, the Court must set forth in a signed writing the basis for its decision to enter an order without a hearing. A preliminary conference shall be held within 30 days after filing the order of protection.
Filing An Ex Parte Motion
The process for filing an ex parte motion is somewhat similar to that of a traditional motion in family court. A litigant must prepare the motion and supporting papers, as well as a proposed Order for the judge’s signature. The family court judge handling the matrimonial part in each county has Standing Orders that are available online.
For example, in Essex County, the Judge of the Matrimonial Part has a Standing Order form that contains the relevant information needed for a litigant wishing to file an emergent application as well as a requirement that the litigant "shall provide a copy of this Order upon application." This form can be found on the Morrie S. Wright Matrimonial Part page, on the New Jersey Judiciary website.
A litigant is also required to complete and file a Certification of Emergent Application which provides certain information including the nature of the emergency. For example, an emergent application involving allegations of domestic violence may require the additional filing of a Domestic Violence Information Sheet Certification and a Restraint Order Certification.
The next requirement for filing an emergent application involves what is known as a "pre-motion conference." The family court rules require that the litigant file a Certification stating that the litigant will be appearing pro se, i.e. without an attorney, and that the litigant has given the other party (the adversary) notice of the application or has made diligent efforts to inform them. There is no particular timeframe that is required under the family court rules, but "immediate" notice is the general rule. Where a litigant is unable to provide prior notice, the family court judges may provide some leeway under certain circumstances.
The pro se litigant is also required to certify to the court that he/she reviewed the following prior to the pre-motion conference: After the pre-motion conference, the court may set forth specific requirements for the litigant to follow before the scheduling of a hearing. For example, the court may require the pro se litigant to provide proof that they gave the adversary notice of the application at least 24 hours in advance, or the court may schedule a second conference if the litigant files an emergent application and fails to appear at the scheduled conference. At the pre-motion conference the court may make a determination that the application is not emergent and the pro se litigant is required to consent to adjourn the application.
In certain circumstances the court may cancel a pre-motion conference and issue an Order to Show Cause if the court finds that the application is indeed emergent. It is then up to the judge assigned to the case whether or not the application is emergent and a hearing should be held. The pro se litigant will then be required to submit an Affidavit of Service on the adversary or a Certification of Compliance stating that they are not able to show cause why service has not been made prior to the scheduled court date. The court will then either issue the emergent Order, schedule a hearing or take other appropriate action as it deems necessary.
Requirements for Ex Parte Relief
In making the decision to grant or deny an order ex parte, a judge will consider whether the moving party has demonstrated that he or she will suffer irreparable harm without relief, or whether there is an immediate danger of harm to the parties or children. In weighing the potential harm to be suffered by the moving party if relief is not granted, a judge will balance the possibility of irreparable injury, the likelihood of success upon motion at a full hearing, the possibility of harm to other interested persons or the public if relief is not granted and the existence of the alternatives to granting relief. Ex parte orders are not lightly granted. However, the legislature has statutorily provided for their issuance in RCW 26.10.110 (Hearing – Temporary emergency custody), RCW 26.10.210 (Hearing – Temporary Custody), RCW 26.44.063 (Emergency medical care – custody), RCW 26.50.060 (Ex parte temporary order), RCW 10.14.080 (Custody of children). Also, many counties have local rules authorizing the use of ex parte orders on a variety of issues.
Impact of Ex Parte Orders
Since ex parte orders are not subject to an adversary hearing or a judicial review, the order may be materially harmful to the respondent. In ex parte proceedings, there is no requirement that the court hear the other party, even where some injury might result from the ex parte order. Generally, if one party can prevail at an adversary hearing, the judge may reconsider the issue. However, the initial ex parte order remains in force until the modification or revocation by a decision of the judge after a hearing. Again, ideally the petitioner would serve the order on the respondent through service of process, such that they will have an opportunity to contest the petition at the adversary hearing . However, there may be cases where the petitioner cannot find the other parent and thus, the petitioner may ask the court to enter a temporary custody order ex parte.
Ex parte orders typically last around ten days and can provide imperative relief by immediately restricting parental rights. Potential consequences include granting or denying primary custody, parenting time, temporary financial relief, and even temporary exclusive possession of the marital home. The implications of ex parte orders can be devastating for the other party in the absence of a full adversary hearing. Where children are involved, a parent may be deprived of parenting time and custody, placing them at higher risk of alienation from the kids.
Contesting An Ex Parte Order
If you have received an ex parte order that you believe to be unjust, you still have legal recourse. You can challenge the original order and request a hearing. You may be required to pay certain filing fees, or deposit money with the court to take such action, but you can ask for a hearing before a judge to review or adjust the order as appropriate, including having it set aside completely based on evidence not heard by the commissioner who issued the order.
Typically, there are two paths that will lead to challenging an existing ex parte order. The first is by filing what is called a motion and order to shorten time ex parte with notice – this means you have already served the other parent in this case with process, they have an opportunity to see what you are filing with the Court, and you are requesting that the Court hold a hearing on an expedited basis. In the ex parte situation, the judge will typically grant the order without requiring extra notice to the other parent, and consequently the order is entered immediately upon signing. This is in contrast with an order entered after a full hearing before the Court, where a judge typically will not sign an order changing a child’s primary residence, the residential schedule, or a legal decision-making scheme without the matter actually being presented to him or her by way of testimony or other evidence. In most cases, the Court cannot order those things without a formal basis to do so. However, for an ex parte order the commissioner will typically determine whether there is sufficient good cause on the papers themselves to make the order – in other words, to grant the requested relief without actually taking the matter to a hearing – based on the information presented to him or her.
Once you have served said paperwork on the other party, you will likely need to wait no less than 14 days from the time of the service before you get a hearing date. On that 14th day, or at least during that time, you will receive about a week of notice (longer if you try to schedule for a Friday) for the hearing to be held. When you go to serve your papers, the commissioner will usually assign you a specific date for your hearing. If not, then the attorney serving the paperwork will set the issue for hearing on an ex parte calendar before the commissioner who made the initial order. At the hearing, you or your attorney must convince the Court that the order should either be set aside, or modified in some significant respect.
The good news is that you cannot have an ex parte order against you forever. Just about every judge on the bench handles some aspect of family law matters. They do get very invested in the issues surrounding the children and family in general. While the commissioner may not be informed on the case, judges have some familiarity with the families that come before them.
In most counties, the clerks or court staff will require you to file a deposition questionnaire immediately preceding your hearing. In effect, you are providing to the judge a background on you and your current situation, as well as what you are asking for from the hearing. In addition to the paperwork you have filed, the Court will typically receive: At the hearing, the order that was entered can be modified, set aside, or left as is based on the presentation of the evidence. While you as the moving party are required to convince the commissioner who made the initial order, the burden is not insurmountable.
Seeking Legal Help and Other Considerations
Understanding ex parte in family court can be the difference in winning (or losing) a case. Handling this information with care is important for the safety and stability of your family. The involvement of children can further complicate matters, so you must be prepared to move quickly. Any ex parte order should be thoroughly reviewed. To help you stay on the right side of the law , consult with a family law attorney in your area. They will have the legal knowledge to ensure you’re complying with all the necessary requirements. A family law attorney can also work alongside you if further action is needed. As you search for the best family law attorney to fit your needs, ask plenty of questions and listen closely to the responses. Some things you may ask about: If you’re still unsure about who to choose after meeting with family law attorneys in your area, keep searching. Finding someone you’re comfortable with is critical to the outcome of your case.