What information does the judge base their decision on?

The information considered in an ex parte motion only includes the information from the moving party since the other party is not there. Emergency matters can be addressed urgently when there is an imminent threat to the lives or rights of the people involved before a formal court hearing happens. Ex parte motions serve a short-term purpose. 

When can you do an ex parte motion?

You can bring an ex parte motion in very specific and limited circumstances, generally where there is a significant and urgent need that justifies bypassing the standard requirement of notifying the other party. 

Here are some common situations where an ex parte motion might be appropriate:

1. Immediate Risk of Harm: If there is a clear and present danger to a person’s safety, such as domestic violence or threats of harm, where notifying the other party could escalate the threat.
2. Risk of Removing Children: In family law, if there is a credible threat that a parent might unlawfully remove children from the jurisdiction, an ex parte motion can be used to temporarily prevent the parent from doing so.
3. Prevention of Asset Dissipation: If there is a risk that a party might hide or unlawfully dispose of marital or shared assets before a proper division can be decided by the court.
4. Protective Orders: To quickly put protective measures in place that prevent contact or harassment by another individual.
5. Preservation of Status Quo: In cases where immediate action is necessary to prevent significant changes to a situation, such as stopping the demolition of a property or halting the transfer of contested funds.

What is an example of a situation requiring an ex parte motion?

Scenario: Emergency Custody Order Due to Threat of Abduction

Background:

Maria and John are separated, and they share custody of their 6-year-old son, Alex. Relations between Maria and John have deteriorated, and recently, Maria has become aware that John is planning to move back to his home country with Alex. She discovers that John has secretly obtained a passport for Alex and has been making travel arrangements without her consent or knowledge.

Situation:

Maria learns that John has booked tickets for a flight scheduled to leave in two days. She fears that once John takes Alex out of the country, it will be extremely difficult to secure his return, given the differences in international legal systems and the lack of bilateral agreements on child custody with John’s home country.

Action:

Given the immediate risk of abduction, Maria consults a family law attorney who advises her to file an ex parte motion for emergency custody. This motion requests the court to grant her temporary full custody of Alex and to order the immediate surrender of Alex’s passport to the court to prevent the planned departure.

Legal Justification:

The ex parte motion is filed on the grounds that notifying John about the custody hearing would likely prompt him to accelerate his departure plans, potentially leaving before the court could intervene. The motion includes detailed evidence of John’s actions, such as copies of the booked airline tickets, a newly issued passport for Alex, and communications from John that suggest his intention not to return.

Outcome:

The court reviews Maria’s urgent ex parte motion and decides that the evidence presented justifies a temporary emergency order. The court grants Maria temporary sole custody and orders John to surrender Alex’s passport. A hearing date is set for two weeks later, at which both Maria and John can present their cases, and the court will make further decisions regarding long-term custody arrangements.

In this scenario, the ex parte motion is crucial for preventing the imminent risk of child abduction and ensuring that the child remains safe while a more comprehensive legal process can be undertaken.

What do you need to show to be successful on an ex parte motion?

To be successful on an ex parte motion, you generally need to demonstrate the following key elements to the court:

1. Urgency: You must show that the situation requires immediate attention and cannot wait for a standard motion process. This could be due to risks of harm, significant financial loss, or irreversible changes to the current status.
2. Irreparable Harm: You need to convincingly argue that if the court does not grant the ex parte motion, you or others will suffer harm that cannot be remedied later. For instance, in cases of potential domestic violence, the harm could include physical injury or even life-threatening situations.
3. Notice Impracticability or Harmfulness: Explain why it is not practical to give notice to the other party or how giving such notice could lead to harmful consequences. This could be due to the other party avoiding service, fleeing, or causing harm if they become aware of the pending action.
4. Good Faith in Filing the Motion: You should demonstrate that the motion is not being used strategically for unfair advantage and that there is a genuine need for immediate judicial intervention. This includes showing that you’ve made reasonable efforts to notify the other party where possible or explaining why such notification was not feasible.
5. Detailed Factual Background: Provide detailed, specific facts supported by evidence. This may include affidavits, police reports, credible threats, or other documentary evidence that supports the claims of urgency and harm.
6. Legal Grounds for Relief: Clearly state the legal basis for the request. This involves citing the appropriate statutes or legal principles that authorize the court to grant the relief sought under the circumstances described.
7. Proposed Order: You need to submit a draft order along with your motion. This helps the judge understand exactly what you are asking for and ensures that the order, if granted, addresses the immediate needs presented in your motion.

By meeting these criteria, you strengthen your chance of convincing the court that an ex parte motion is necessary due to the exceptional circumstances of your case, ensuring that justice is served without undue delay.

What documents do you need to file for an ex parte motion?

A Notice of Motion (Form 14) – this document contains a list of orders you want the judge to make -You must check the box that says “without notice”.

An Affidavit (general) (Form 14A) – this is where you explain why you need the orders you are requesting and include your evidence. Identify each Exhibit that you attach in alphabetic sequence. For example, write “Attached as ‘Exhibit A’ is a copy of the parenting schedule”. This affidavit must be affirmed or sworn. You promise that everything you are saying is true.

Both these must be filed together with the court.

You will fill out a Draft Order (Form 14D) which contains all of the orders you want the judge to make. You must have it available for the judge at the motion.

When do you serve your partner the motion materials?

In an ex parte motion, you file the motion and supporting documents directly with the court without initially serving the opposing party to prevent potential harm that notification might cause. If the court grants the temporary order based on your submission, it then instructs on how and when to serve the opposing party with the motion materials and the order. This service typically includes a notice of a scheduled hearing where both parties can present their cases, allowing the court to decide whether to extend, modify, or terminate the temporary order. Compliance with local court rules regarding the timing and manner of service is crucial.

How long does your order last?

An order granted through an ex parte motion is typically temporary, usually lasting from a few days to a couple of weeks, enough time to arrange a more comprehensive hearing. This short duration allows the court to address immediate risks and provides the other party time to respond. Most jurisdictions schedule a follow-up hearing within 10 to 14 days, where both parties can present their arguments. At this hearing, the judge assesses whether to extend, modify, or terminate the temporary order, possibly converting it into a longer-term order based on the information presented.

When must the motion return to court so the other side can argue their position?

The motion must return to court for a subsequent hearing typically within 10 to 14 days after the ex parte order is granted. This time frame allows the other side to be served with the motion materials and the temporary order, giving them an opportunity to prepare and present their case. During this follow-up hearing, the court listens to arguments from both parties before deciding whether to extend, modify, or terminate the temporary measures put in place by the ex parte order. This process ensures that the rights of the opposing party are respected and that decisions are made based on a comprehensive review of all relevant facts and perspectives.

What is the risk of doing an ex parte motion?

Filing an ex parte motion carries certain risks, especially if the order is reversed at the subsequent hearing where the other party has the opportunity to argue their position. One significant risk involves the potential financial consequences for the moving party. If the court decides to reverse the temporary order granted through the ex parte motion, the moving party may be required to pay a portion, or sometimes all, of the legal costs incurred by the other party. This can be substantial. This financial risk acts as a deterrent against the frivolous use of ex parte motions and encourages parties to use this legal tool only in situations of genuine urgency and necessity. The requirement to potentially cover the other party’s costs ensures that ex parte motions are reserved for truly critical situations where delaying action until a regular hearing could result in irreparable harm or severe injustice.