Ex-parte emergency motions are not liberally granted and many are denied because the moving party does not follow the proper legal and procedural rules.
The party filing a motion for emergency or ex-parte relief must show that immediate and irreparable harm will be done to a party, the children or the marital estate before the other party can be heard on the issue. The party filing must notify the other side of their intent to file an emergency or ex-parte motion. The moving party must state in the motion what efforts he or she made to notify the other party of the emergency or ex-parte filing. This requirement can be satisfied by the moving party either orally or in writing, so long as the notice is given with enough time to allow the other party to appear at court and contest the motion.
What is an Ex-Parte emergency motion?
According to the Superior Courts of California, "an Ex Parte Motion is when one side gets to meet with the judge without the other side there. This can be to ask for an order. For example, if you cannot file and serve a Motion within the time limits required by law, you can ask the court for an Order Shortening Time For Service of Notice of Motion." This means that your hearing may be able to be heard sooner than it typically would have.
What Qualifies as Immediate Harm for Ex-Parte Relief?
Immediate harm is harm that will happen now, very soon, or before a regularly scheduled hearing can be held by the family court. Examples of immediate harm would be drug or alcohol abuse or mental and or physical abuse toward a child during the other parties’ parenting time.
What Is Irreparable Harm?
Irreparable harm is harm that is permanent and cannot be fixed. Anytime a child is in danger would constitute irreparable harm because the child is very likely to be permanently harmed, either intentionally or unintentionally, while in the care of the impaired parent. Another example of irreparable harm is the threatened destruction of a valuable marital asset by one party.
The bottom line is unless there is a true emergency situation of danger or destruction of property it is unlikely that emergency or ex-parte relief will be granted. If the judge does not grant the motion, a hearing will take place where both sides will have an opportunity to argue their case. If you have need representation at a hearing or have questions regarding an ex-parte motion, call us at (603) 288-1403 to assist you or fill out our online contact form.