Ex Parte Divorce and Ex Parte Custody Orders

"Ex Parte" orders are about true emergencies in a divorce or child custody case

Ex Parte Divorce and Ex Parte Custody Orders Are About Real Emergencies

Ex parte divorce and custody proceedings are about real emergencies

Ex parte divorce proceedings are common in California family law cases. Unfortunately, they are too common and too many ex parte divorce or custody applications are heard every day.

In this article, we will discuss family law ex parte divorce procedure and proceedings. We will discuss how and when to give notice, what the ex parte paperwork entails and what happens at an ex parte proceeding.

This article is not legal advice about your specific case. For that, you will need a private consultation with an experienced family law attorney.

Much of what we refer to in this article is the California Rules of Court (which applies to the entire state). This article does not address ex parte applications in domestic violence cases. Please read our article on the Domestic Violence Prevention Act for more information about that topic.

What is the purpose of an ex parte divorce or custody application?

California Rules of Court 5.151 states...

Purpose of a request for emergency orders is to address matters that cannot be heard on the court's regular hearing calendar. In this type of proceeding, notice to the other party is shorter than in other proceedings. Notice to the other party can also be waived under exceptional and other circumstances as provided in these rules.

In short, an ex parte application's purpose is to get in front of the judge faster than normal.

What notice is required to go to court on an ex parte basis?

An ex parte application is a set of paperwork filed with the court after proper notice is given. Proper notice can vary from county to county. In Orange County, an ex parte application has to be noticed by 10 AM the day before the ex parte hearing is set to be heard.

That is typically done by phone although it can be done in writing, or both. Sometimes, an ex parte proceeding is heard without notice or on shorter notice although that is uncommon. Each county has their own procedures.

California Rules of Court 5.151 states the following must be part of the notice. The notice must:

"(A) State with specificity the nature of the relief to be requested;

(B) State the date, time, and place for the presentation of the application;

(C) State the date, time, and place of the hearing, if applicable; and

(D) Attempt to determine whether the opposing party will appear to oppose the application (if the court requires a hearing) or whether he or she will submit responsive pleadings before the court rules on the request for emergency orders."

Documents have to be filed that show proper notice. Orange County has a specific form that is called "Declaration Re: Notice of Ex parte Application." This includes per California Rules of Court 5.151, "a completed declaration regarding notice that includes one of the following statements:

(A) The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 5.165, the applicant informed the opposing party where and when the application would be made;

(B) That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or

(C) That, for reasons specified, the applicant should not be required to inform the opposing party."

Regarding notice after 10:00am or lack of notice, California Rules of Court 5.165 states:

"(1) Explanation for shorter notice

If a party provided notice of the request for emergency orders to all parties and their attorneys later than 10:00 a.m. the court day before the appearance, the party must request in a declaration regarding notice that the court approve the shortened notice. The party must provide facts in the declaration that show exceptional circumstances that justify the shorter notice.

(2) Explanation for waiver of notice (no notice)

A party may ask the court to waive notice to all parties and their attorneys of the request for emergency orders. To make the request, the party must file a written declaration signed under penalty of perjury that includes facts showing good cause not to give the notice. A judicial officer may approve a waiver of notice for good cause, which may include that:

(A) Giving notice would frustrate the purpose of the order;

(B) Giving notice would result in immediate and irreparable harm to the applicant or the children who may be affected by the order sought;

(C) Giving notice would result in immediate and irreparable damage to or loss of property subject to disposition in the case;

(D) The parties agreed in advance that notice will not be necessary with respect to the matter that is the subject of the request for emergency orders; and

(E) The party made reasonable and good faith efforts to give notice to the other party, and further efforts to give notice would probably be futile or unduly burdensome."

Why would a spouse ever file an ex parte divorce or custody application?

An ex parte application is a spouse's way of telling the court he or she needs an emergency order. This may be for an emergency custody order, emergency financial orders or a combination of each.

California Rules of Court 5.151 lays this out. It includes requests to the Court to:

"(1) Make orders to help prevent an immediate danger or irreparable harm to a party or to the children involved in the matter;

(2) Make orders to help prevent immediate loss or damage to property subject to disposition in the case; or

(3) Make orders about procedural matters, including the following:

(A) Setting a date for a hearing on the matter that is sooner than that of a regular hearing (granting an order shortening time for hearing);

(B) Shortening or extending the time required for the moving party to serve the other party with the notice of the hearing and supporting papers (grant an order shortening time for service); and

(C) Continuing a hearing or trial."

For child custody cases (since those are the most common ex parte custody applications), the key words there are "immediate danger or irreparable harm."

An ex parte custody application should not be brought just because a spouse or parent wants immediate orders.

Without immediate danger or irreparable harm, the court does not have the power to make ex parte orders.

The reason is simple. If every time a spouse or parent thought there was an emergency without immediate danger or irreparable harm, family law judges would spend their entire day reading and ruling on ex parte custody applications.

Unfortunately many spouses, parents and even lawyers bring frivolous ex parte applications in custody cases that waste the court's time and everyone's money. Knowing when to go in on an emergency application and when not to is one reason a family law attorney's advice is so important.

For non-child custody cases, preventing "immediate loss or damage to property" is a key component. This is self explanatory and the major question is what imminent harm will occur if the ex parte application is not granted? For this reason, there are not many situations where an ex parte divorce application is justified for financial issues.

There are also situations where emergency support can be ordered but that is beyond the scope of this article.

Can an ex parte application be brought to get a quicker hearing date?

Yes and this is called an ex parte application for an order shortening time. Seeking an order shortening time means lessening the amount of time it would normally take to get to hearing. However, such an ex parte application still requires a proper showing.

What should be written in an ex parte application?

An ex parte divorce application includes certain judicial council forms and a declaration under oath that specifically lays out the basis for the emergency as well as the relief requested. California Rules of Court 5.151 states the contents of the application and declaration should include:

"(1) Identification of attorney or party

An application for emergency orders must state the name, address, and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, and telephone number of the party, if known to the applicant.

(2) Affirmative factual showing required in written declarations

The declarations must contain facts within the personal knowledge of the declarant that demonstrate why the matter is appropriately handled as an emergency hearing, as opposed to being on the court's regular hearing calendar.

An applicant must make an affirmative factual showing of irreparable harm, immediate danger, or any other statutory basis for granting relief without notice or with shortened notice to the other party.

(3) Disclosure of previous applications and orders

An applicant should submit a declaration that fully discloses all previous applications made on the same issue and whether any orders were made on any of the applications, even if an application was previously made upon a different state of facts. Previous applications include an order to shorten time for service of notice or an order shortening time for hearing.

(4) Disclosure of change in status quo

The applicant has a duty to disclose that an emergency order will result in a change in the current situation or status quo. Absent such disclosure, attorney's fees and costs incurred to reinstate the status quo may be awarded."

For those that include child custody or parenting time under California Family Code 3064, it must:

"(A) Provide a full, detailed description of the most recent incidents showing:

(i) Immediate harm to the child as defined in Family Code section 3064(b); or

(ii) Immediate risk that the child will be removed from the State of California.

(B) Specify the date of each incident described in (A);

(C) Advise the court of the existing custody and visitation (parenting time) arrangements and how they would be changed by the request for emergency orders;

(D) Include a copy of the current custody orders, if they are available. If no orders exist, explain where and with whom the child is currently living; and

(E) Include a completed Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL-105) if the form was not already filed by a party or if the information has changed since it was filed."

We believe an ex parte divorce application and the declaration with it should get right to the point. It should not take many pages of reading before the judge finally gets to the basis for the emergency. This is the biggest mistake we see made in ex parte applications.

Does the ex parte divorce or custody application need to be served?

Yes, California Rules of Court 5.167 states:

"a) Service of documents requesting emergency orders

A party seeking emergency orders and a party providing written opposition must serve the papers on the other party or on the other party's attorney at the first reasonable opportunity before the hearing. Absent exceptional circumstances, no hearing may be conducted unless such service has been made. The court may waive this requirement in extraordinary circumstances if good cause is shown that imminent harm is likely if documents are provided to the other party before the hearing. This rule does not apply in cases filed under the Domestic Violence Prevention Act.

(b) Service of temporary emergency orders

If the judicial officer signs the applicant's proposed emergency orders, the applicant must obtain and have the conformed copy of the orders personally served on all parties."

How should an ex parte divorce or custody application be opposed?

First, the person receiving notice should immediately obtain a copy of the ex parte application and all the paperwork that goes with it once it is completed.

If the person who noticed the ex parte refuses to provide it, this should be brought to the court's attention and documented in writing to the other spouse or other spouse's lawyer.

This assumes of course the person receiving the ex parte notice does not already have a restraining order or other no contact order against him and can contact the other party. That is another reason having an attorney's representation is important.

On that topic, we strongly recommend hiring an experienced family law attorney once you have received notice of the ex parte application. Trying to represent yourself under such stressful and emergency situations is not wise. An experienced family law attorney will know much better how to properly oppose an ex parte application that does not have merit and help draft the proper opposition.

If the spouse receiving notice of the ex parte divorce application already knows the reason for it (essentially knows what the other spouse is going to allege in his or her paperwork), he or she and his or her lawyer should start working on the opposition paperwork.

This includes preparing a declaration and gathering the evidence to attach to it. Of course, the opposition may not be limited to what is prepared before seeing the paperwork. Read more on that below.

At the ex parte hearing is the latest you should receive the ex parte application and all the paperwork, assuming you have not already. If you still have not received it, this should be brought to the court's attention immediately although court clerks and bailiffs will usually ensure you receive the paperwork before submitting it to the judge and they will generally wait until your opposition is received before submitting anything to the court.

At the ex parte divorce hearing, you will have an opportunity to prepare your written opposition. This can be done in writing and most people will handwrite their opposition once they read the paperwork.

If you have prepared an opposition ahead of time in a typewritten format, the handwritten document you prepare can be in addition to the typewritten opposition.

Does the court actually take oral testimony of the parties and allow oral argument?

Family law judges usually rule on the ex parte application based solely on the paperwork. The great majority of time, the family law judge does not allow further testimony or oral argument. That is why it is even more important that the paperwork be prepared well.

Will the family law judge either grant or deny the ex parte requests?

The family law judge can grant the ex parte application, deny it or grant or deny parts of it. It doesn't have to be all or nothing. For example, if there are several requested orders, the court can grant one or more of them but not all.

What happens after the court makes the ruling on the ex parte application?

Regardless of whether the court grants or denies the ex parte, in whole or in part, the court will generally set a follow up hearing to rule on the requested relief in an evidentiary hearing. Most of the time, any ex parte orders remain in effect only until the evidentiary hearing date or further order of the court. This however can vary from case to case.

Closing thoughts

We hope you enjoyed this article on ex parte procedure and proceedings. If you have a divorce, parentage or post judgment family law matter in Southern California, please contact us for an affordable strategy session.

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