In court cases, parties are entitled to notice and the opportunity to be heard. This is the basic concept behind due process, and everyone is entitled to it.
In emergency situations, an ex parte motion provides an exception to the rules of due process by allowing you to petition the court without having to notify or serve the other parties involved in your case.
If the judge grants the ex parte order, the order is only temporary. The judge will hold a full hearing within a short period of time.
What is the procedure for an ex parte application?
The procedure for an ex parte application depends on the state. In some states, you submit an ex parte application or motion to the judge along with your affidavit and any exhibits you want to attach. The purpose of this application is to convince the judge that you, as the petitioner, need an immediate order because of an urgent situation. The stronger your affidavit and supporting documents, the more likely you are to have an ex parte order granted.
In some states, the judge will review the application and supporting documents and either grant or deny the ex parte order on the strength of the documents without meeting you. In other states, the judge will want you to appear and will ask you questions to determine whether your situation is a true emergency.
In many states, you present your ex parte application to the judge the same day you file it in court. The clerk will ask you to wait in the courthouse until the judge can either review the papers or until the judge wants to speak with you.
In other states, such as California, you must give notice to the other party the day before the emergency hearing or there's a risk of having the request denied. California's requirement of notice is unnecessary, though, if you can prove there's a serious risk of violence if the ex parte order is not granted.
What happens after the judge reviews the ex parte motion?
The judge can grant the ex parte motion and issue a temporary order, such as a temporary full custody order or a temporary restraining order. Because the other party was not present, the order is only temporary. Some examples of ex parte orders are orders that:
- Prevent the other party from taking a child out of the country or state
- Prevent the other party from destroying property
- Prevent the other party from removing assets in a divorce proceeding
- Require the other party to stay away and not harass you
The court has to hold a hearing, with both sides present, within a reasonable amount of time. Some states require a full hearing to occur within 10 days, while others require a full hearing in 14 to 20 days. The purpose of the hearing is to make sure the other party has been given their due process rights.
If the judge denies your ex parte application, a hearing may still be held shortly after the denial. You and the respondent both must appear at the hearing.
What happens at the full hearing?
At the full hearing, you and the respondent present evidence through testimony and any other documents you may have, such as photos, hospital records, and police reports.
The respondent can object to the ex parte order. The judge must decide whether to issue a permanent order to replace the temporary ex parte order. If the judge doesn't believe you need a permanent order, the judge will dismiss the petition and vacate, or cancel, the ex parte order.
If you fail to appear at the hearing, the judge will dismiss the order. If the respondent fails to appear, it's likely you will receive a permanent order that is effective for approximately one year. In some states, the respondent's failure to appear allows the judge to grant a permanent order automatically.
If the respondent appears and doesn't contest the order, the ex parte order will convert to a permanent order without any testimony. If the respondent appears and objects to the order, there will be a trial. You and the respondent will each testify and present evidence. Then it's up to the judge to determine whether you need a permanent order or whether to dismiss the petition.