Obtaining Emergency Relief Through an Ex Parte

Written by a custody lawyer and a domestic violence attorney serving the Hemet, Murrieta, and Temecula areas of Riverside county, California.

An ex parte application is a form of relief available in a legal separation, a divorce or any other family law matter, including paternity. The purpose of an ex parte is to obtain a temporary restraining order, also called a TRO. A temporary restraining order prevents a party from doing something until the court has time to address the subject more thoroughly.

Ex parte relief is usually found in a divorce situation where there is domestic violence between the parties, or where the parties are fighting over custody of children.

In a domestic violence situation, the purpose of an ex parte is to obtain a TRO which orders the abusive spouse to stay away from the other party. This would include no phone calls, no e-mails, and no communication of any type. A restraining order would normally order the abusive spouse to move out of the house, to stay at least 100 yards away from the other party's home, job, car and person. It would also prevent the sending of any messages to the protected party, even through a third person, or by way of a gift.

The consequences of violating a domestic violence restraining order are severe, and can include up to one year in jail. After a temporary restraining order is issued, the protected party must show up in court to obtain a permanent restraining order. At that point, the alleged abusive party has the ability to tell his or her side of the story. If you are accused of perpertrating domestic violence, beware: anything you say in open court to defend the request for the restraining order can later be used to prosecute you. If you are guilty, seek the advice of an attorney before you go to court. If ther is domestic violence in front of children, if you do not get a restraining order against the abusing spouse, you could lose custody of the children.

The other situation in which a party may request a TRO in a famiily law situation by way of an ex parte application would typically be where the parties have children. Since an ex parte is an emergency request for temporary orders, and the orders are made without a hearing, the court will not grant a request lightly. In order to grant such a request, the court must find a true emergency. Legally, this is called having exigent circumstances and the potential of irreparable harm. Simply put, in order to make a temporary order for child custody the court must find the child is in some sort of immediate and probable danger which is so serious that it cannot be corrected.

There are two types of emergencies the court will grant a temporary restraining order in a divorce situation. They are either one parent is about to flee the state with the child, or the child is in some sort of physical danger. Again, the tempoary restraining orders that are granted at an ex parte are only good for about three weeks. Some time before the orders expire, the parent requesting a child custody order must return to court for a hearing. At the hearing, both parties have a change to address the court. Each party has a right to a lawyer.

If the court finds good cause, the TRO will be extended. If not, it will be dissolved. Prior to the custody order being made, the court will order the parties to attend mediation to try to settle custody. Mediation is a meeting between a court official and both parents. The purpose of mediation is to try to settle the custody dispute informally. If the parents are unable to agree on a custody arrangement, the court will make orders at the next hearing. Only the parties are allowed to attend mediation. Attorneys are excluded from the process.

An ex parte in Riverside County as of the posting of this blog is done by filing the family law paperwork before 12:00 noon in the local family law courthouse. The courthouse for the Temecula and Murrieta area is located in Hemet, California The court will then have give you an answer by 4:00pm that day, telling you whether the ex parte was denied or granted. They will also give you a court date to have a full hearing on the issue of whether the restraining order should be extended.

For more information on temporary restriaining orders, child custody, or any other divorce or family law issue and you live in the Temecula, Hemet, Riverside or Murrieta area, please call one of our divorce and paternity lawyers at (951) 816-9543 or visit our websites at http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/