Monday, May 28, 2007

What is an Ex Parte Application?

Written by a Temecula divorce and family law lawyer practicing in the Hemet, Murrieta and Temecula areas of Riverside County

An ex parte application, also called an emergency hearing, an ex parte, or a request for temporary orders, is a request asking the court to make emergency orders. In California, the court cannot grant an ex parte application unless it finds that there are "exigent circumstance" and "irreparable harm."

Exigent circumstances means that there is some sort of emergency, and if the court does not grant the requested orders, some act is almost certain to occur. Irreparable harm means that what is going to occur is so bad that once it is done, it cannot be fixed.

Most situations do not rise to this level. Examples of emergencies which would require the court's intervention are in child custody and domestic violence situations. For instance, if a child was going to be removed from the state of California, or if the child was in some sort of physical danger, the court would intervene. Temporary restraining orders are routinely granted where one parent is planning to move out of the state or has threatened to kidnap the children. They are also granted where there is physical abuse in the household, one parent physically attacked the child, or one of the parents is a danger to the child.

Being a danger to the child would be an action, habit or state of mind which prevents one parent from properly caring for the child. This includes mental illness, threats of suicide, being homeless, being an alcoholic, abusing controlled substances, or severely neglecting the children.

If there is domestic violence in the home, the court would issue temporary custody orders, as well. In fact, if one parent has perpertrated domestic violence within the last five years, it is assumed he or she should not have custody of the children. Normally, the court will look to some sort of recent actions before issuing a temporary order on this basis.

Recent acts of domestic violence are, in and of itself, a reason for the court to issue temporary restraining orders. These are commonly referred to as CLETS orders, DV orders, or domestic violence orders. If there has been some sort of incident, or a history of domestic violence plus recent threats, the courts will err on the side of caution and give the requesting party a court order preventing the other party from contacting him or her. It will also order that the offending party stay at least 100 yards away from the other party.

Domestic violence orders can include custody orders, visitiation orders, child support orders, and spousal support orders. but they do not have to. It can simply be an order that one side leave the other alone.

Although an ex parte application usually cannot include a request for money, there are exceptions to this general rule. For instance, if one party has hidden money from the other, the court will oftern issue an ex parte order freezing that money. If the parties' home is in danger of imminent foreclosure, the court will often order that it be sold. If the children's daycare or school tuition must be paid or the children will be dis-enrolled, the court will issue an order that the tuition be paid.

The process for an ex parte in the county of Riverside as of the date of this blog is as follows: paperwork is filed in any courthouse in the county by 12 noon. The court notifies the moving party whether the order was granted, denied, or it needs more information. If the restraining order is granted the court sets a hearing within three weeks. If the order is denieds, a hearing date is set about two months away. If th court needs more information, the moving party must notify the other side by that evening, telling him or her they are both ordered to court the next day. The court then asks questions of both sides and makes a temporary order, which is good for about three weeks.

If the ex parte is granted, those temporary orders are only good for a few weeks. Thereafter, the court must grant both parties a full hearing. This allows each side to tell his or her side of the story through witnesses and other evidence. At time of the hearing, the court will make a more permanent order. If the orders involve domestic violence, the court has the power to grant CLETS orders for up to five years.

If the orders involve a divorce or paternity issue, it depends at what stage of the proceedings the case is. If there is not yet a judgment entered, the orders issued at the hearing on the ex parte will only be good until time of trial.

If you live in the Temecula, Murrieta or Hemet areas of Riverside county, California, and you have a family law or divorce related question, please feel free to contact our office to set up a free consultation with one of our experienced family law lawyers at (951) 587-0505.

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