Ex Parte

The Latin term ex parte is used in law to refer to court proceedings for the benefit of one party to a controversy, without the other being present. This is an exception to basic court procedure, which requires that both parties be present at any argument or proceeding, and that neither party may have contact with a judge without previously notifying the other party. Ex parte matters usually involve emergency requests, and often result in temporary orders pending a hearing on the matter. To explore this concept, consider the following ex parte definition.

Definition of Ex Parte

Pronounced ex par-tay

Adjective

1. From, or for the benefit of, one side or party.
2. Of, or relating to, an action in a legal proceeding brought about by one party without the participation or presence of the opposition.

Origin

1672     Medieval Latin

Fairness in Legal Proceedings

At the heart of the Fifth Amendment right to due process in the U.S. legal system lies the requirement of providing fair notice to all parties who may be affected by a legal proceeding. An ex parte proceeding, which is conducted with no notice to, or presence of, other parties would seem to violate that Constitutional right. The courts recognize, however, that circumstances exist in which giving proper ex parte notice to one party may cause serious harm to another. This may be the case, for example, when an individual requests an emergency protective order against an abuser, or an emergency order to remove a child from an abusive parent. In such cases, an ex parte proceeding may result in a temporary order pending a scheduled hearing.

There are other situations in which waiting may result in irreversible harm, though not bodily harm, or in which proper notice is simply not feasible. For example, Margaret has lived in her home for 40 years, enjoying the long established neighborhood with mature trees and beautiful landscaping. On Tuesday morning, she notices her new neighbor Frank is planning to have the 100-year-old oak tree that sits on the property line between their lots cut down on Thursday. The giant oak tree is not only beautiful, it provides much needed shade to Margaret’s house throughout the hot afternoons.

Margaret may request a restraining order preventing Frank from cutting down the tree, but by the time the hearing happens, the century-old tree may be a wood pile. Margaret may request an ex parte order for a temporary injunction pending the scheduled hearing. She would need to prove to the judge that there is some chance she would win her case, that waiting for the hearing would likely result in irreversible harm, and that she had no time or opportunity to properly give notice to the other party. The judge would weigh the potential hardship to each party in deciding whether to grant such a request.

Purpose of Allowing Ex Parte Proceedings

State and federal laws allowing ex parte proceedings balance the right of individuals to receive fair notice against the need for the legal system to step in to prevent imminent and irreparable harm. This is not a violation of Constitutional rights, but a demonstration of the flexibility of due process in the legal system. To maintain the integrity of the system, a court order resulting from an ex parte hearing is quickly followed by a full hearing attended by all parties to the dispute.

Ex Parte Notice Requirements

While an ex parte hearing is actually a judicial review of an emergency request, not a hearing in which the parties appear and make oral arguments, there are certain notice requirements for an ex parte proceeding, albeit they are short on time. While the specific ex parte notice requirements vary by jurisdiction, many states allow ex parte hearings if notice of the motion is given to the opposing party before a certain time the previous court day, usually 10:00 a.m., and notice may be even shorter in an emergency involving personal safety.

The way notice may be given is different as well, as many states allow notice by facsimile or email transmission, or even by oral notification. The party filing the ex parte application must provide a written declaration that they have complied with notice requirements, as well as a declaration based on personal knowledge that there is immediate danger of irreparable harm. In some jurisdictions, opposing parties are allowed to appear at the ex parte hearing by telephone, though most courts do not consider oral arguments at all, only written documents.

Overuse of Ex Parte Motions in Family Law

The use of ex parte motions is perhaps most common in family law matters. Emotions run high in divorce and child custody matters, making ex parte motions a popular option for parties who naturally feel a sense of urgency about the issues that arise. Individuals representing themselves in family law matters (“pro se” litigants) often use ex parte applications because of the perception of receiving priority status in court scheduling, as well as obtaining some type of immediate action.

The truth is, when an ex parte motion is received by the clerk’s office, a staff member slides it in front of a judge, who is usually busy doing something else, such as reviewing cases, eating lunch, or getting ready to go home. While the courts are happy to issue temporary orders in truly emergent situations, the fact that such motions, often filed when there is no true need for emergency relief, are a huge inconvenience is the most likely reason so many are denied out of hand.

The reason there are so many erroneously filed ex parte motions in family court is a lack of understanding of the term “emergency” among pro se litigants. There is a serious disconnect between what a concerned parent considers an emergency, and what a court considers an emergency. Family court litigants with attorneys rarely find themselves in the situation of filing ex parte requests that will almost certainly be denied, as experienced attorneys know which situations are truly considered urgent, and how to express the imminent danger to the judge.

When an Ex Parte Motion Should Not be Used

Because all individuals have the right to due process, ex parte motions, which deprive a party of the right to be present for a hearing, should be used only in critical emergency situations. One of the most common mistake litigants make in preparing an ex parte motion is failing to even allege that there is a risk of irreparable injury.

No Actual Emergency

Many litigants describe in their motion situations that have already occurred, the consequences of which are not likely to cause future harm. Ex parte motions that claim only past actions or injuries, or that claim no actual injury at all, are likely to be summarily denied. For example, a mother may submit an ex parte application for an order on child custody, claiming the father failed to adhere to the parenting agreement, or that he had been harassing her and failed to make a child support payment. While aggravating, and certain going against prior orders of the court, neither of these actions is an emergency that puts anyone at risk of irreparable harm, so there is no need of an immediate order without a regular hearing.

Contempt of Court

When a party fails or refuses to do something that has been ordered by the court, such as paying spousal or child support, taking care of the children on the weekends, or refraining from calling the other party at work, he or she may be held responsible through a motion for contempt of court.

Contempt of court is a serious act that may have sanctions including fines and further orders to perform certain acts. It also may be subject to quasi-criminal charges, and result in jail time. Because an individual found to be in contempt of court may be deprived of his liberty, he has a greater right to notice of any proceedings against him. Because of this, a motion for contempt must have a hearing, and notice must be properly served on the other party.

Getting Around Notice Requirements

High emotions lead many litigants in family court to use ex parte motions to have a matter decided without giving the other party an opportunity to be heard. For example, one parent in a custody battle may submit a motion for ex parte hearing alleging that the child is in danger of being neglected or improperly cared for if left in the other parent’s care. The courts are aware of these attempts of parents to obtain temporary custody with the court’s assistance.

While the court recognizes its responsibility to protect children from abuse, it must be careful not to grant such motions without proper due process. Decisions made in haste, based on the allegations of only one party, may have drastic consequences for the course of the case as it moves forward. Granting custody to one parent based on an improperly granted ex parte order could have disastrous, lifelong implications for the child and his parents.

Valid Reasons for Filing an Ex Parte Motion

The possibility of irreparable harm exists in many situations, which is the basis of the judicial system’s use of ex parte proceedings. Whether the risk is of bodily injury, financial harm, or other harmful situations that could not be undone, there are many valid reasons for filing an ex parte motion.

Risk of Substantial Financial Harm

While all courts view the potential for physical harm as valid use of ex parte motions, many question whether the risk of financial harm should be the basis of a one-sided hearing. In an extreme case in which a family may be deprived of food, or have their utilities turned off if an order is not made, the court could reasonably be expected to grant a temporary order.

Because of the constant flow of motions pleading litigants’ financial difficulties in family law, many courts have become de-sensitized to motions requesting emergency orders concerning one party’s failure to make support payments, or otherwise failing to provide financially. While it certainly does not carry the same impact as the threat of serious bodily harm, the threat of irreparable financial injury is a serious situation, which should be addressed by the court.

Threat of Serious Personal Injury

In a family law matter, a petition for Domestic Violence Restraining Order (“DVRO”) is generally used to protect a party from threat of serious personal injury. The DVRO petition is a request for an ex parte order of protection, and requires the petitioner to describe the risk of irreparable bodily and/or psychological injury, and such petitions are scheduled for immediate hearing where all parties are to be present. An ex parte motion may be used in conjunction with a DVRO to request a temporary order for child custody pending the usual investigation and determination of a permanent child custody and visitation order.

Protection of a Child

The risk or threat of harm to a child is one of the most frequently cited reasons for ex parte orders of protection in family court. Child custody matters are fraught with anger, resentment, and antagonism, which often drive a parent to take extreme action. A party requesting emergency orders regarding protection of a child should be prepared to provide proof of the imminent danger of irreparable harm to the child.

Such evidence may be in the form of documented incidents of violence, notarized witness statements, voicemail recordings with date stamps, and physician reports of physical or psychological abuse. Because a full hearing will be held after an ex parte motion has been approved and temporary order granted, such evidence would be needed anyway. It is best to include as much as possible with the ex parte motion.

Process for Filing an Ex Parte Motion

Each jurisdiction has a specific process for filing an ex parte motion, which is found in the court’s Rules of Civil Procedure. The Rules also specify how, and under what timeline, an opposing party must be notified that the ex parte motion will be submitted to the court. Because these requirements must be strictly adhered to, it is important to consult the Rules of Civil Procedure in the appropriate jurisdiction, consult the court clerk, or seek the advice of an attorney.

Related Legal Terms and Issues

• Allegation – An assertion or claim that someone has done something wrong or illegal, typically made without actual proof.
• Due Process – The fundamental, constitutional right to fair legal proceedings in which all parties will be given notice of the proceedings, and have an opportunity to be heard.
• Emergency Protective Order – An order issued by the court, or in some states by law enforcement personnel, intended to protect an individual from harm or harassment.
• Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
• Pro Se Litigant – A party to a legal action acting without legal counsel.
• Restraining Order – A court order prohibiting an individual from carrying out a specified action, or from approaching or having contact with a specified person.
• Rules of Civil Procedure – The body of law that specifies the rules and standards followed by the court when adjudicating civil lawsuits.