When to Ask for Emergency Orders for Divorce and Child Custody

The vast majority of divorce and child custody orders, hearings, and motions involve the parties representing both sides of a matter appearing before a judge. This is in line with one of the basic tenets of the court system—that both sides must have the opportunity to plead their case.

However, there are times when ensuring the safety and wellbeing of one side requires sidestepping the normal two-sided process and taking extraordinary measures. This is accomplished through what are known as ex parte hearings and orders—‘ex parte’ literally means ‘for one party.’ While ex parte orders are granted in many types of court cases, they are particularly common in divorce and child custody cases, for reasons that are probably obvious to anyone who has ever been involved in such a case.

Emergency (Ex Parte) Orders - Child Custody & Divorce

What is an ex parte order?

An ex parte order is an emergency order issued by a judge or judicial officer when there is a pressing issue that cannot wait for normal court proceedings, which require notifying the other party and then appearing with them in court. It’s like taking an ambulance to the hospital when you’re having a heart attack, versus having a family member drive you when you have the flu. It isn’t just a matter of wanting to get through the legal process faster. You have to have a compelling reason for doing so.

Ex parte orders can be used to grant a protective or restraining order, give a parent full custody of a child, or restrict someone from destroying property or removing access to financial accounts. This allows an endangered party to secure their safety and security temporarily, until the matter can be settled in a normal court hearing.

In the state of California, ex parte orders are granted in family court when someone is in serious danger, or there are grave financial concerns. Examples of situations that satisfy one of these two conditions include:

  • Your spouse has threatened to harm you or your children, or has a history of doing harm—requesting an ex parte order on these grounds is often accompanied by a petition for a DVRO.
  • Your spouse has threatened to leave the county or state with your children.
  • Your spouse engages in illegal or dangerous activity—drug use, sex trafficking or prostitution, excessive alcohol consumption—that carries a serious risk to you or your children.
  • Your spouse has threatened to damage or destroy your home, car, or other property, or is engaged in behavior that will likely do damage to said property.
  • Without immediate intervention, you and your children may be deprived of the ability to purchase food or pay for utilities and other basic necessities.

What do you have to do to obtain an ex parte order?

First of all, you must currently have an open family court case, such as a request for child custody or dissolution of marriage. Filing a request for an ex parte order is not a means of opening a case. You have you go through the normal channels of initiating a case first.

In most cases, to request an ex parte order, you must notify the other party beforehand—by phone or in person—of your request by 10 AM of the day prior to filing your request. Note that the notice must occur on a day the court is in session, so if you plan to file on Monday, you need to notify the other party on Friday. Your notice to the other party must detail the time, date, nature of the request, and department number of the courtroom at which they must appear if they wish to object to your order. For those filing for an ex parte order in Sacramento family court, you can determine the appropriate department number by reviewing the “Emergency / Temporary Orders” section at the bottom of the County of Sacramento’s “Child Custody / Visitation” page.

In some instances it is possible to avoid notifying the other party, particularly when such a notice would impose the possibility of physical harm, damage to property, or removal of children. But if you do not notify the other party without having a sound argument for doing so, you risk having your request denied.

Lastly, to apply for an ex parte order, you must submit the appropriate paperwork to the court on the day and time indicated in your notice to the other party.

A warning: Bear in mind that judges do not like ex parte requests. This is because ex parte requests are often abused by litigious parties who wish to sabotage or subvert the normal legal processes, and they overburden courts that are already overworked.

Before filing an ex parte request, place yourself in the position of a neutral disinterested party, and imagine what their reaction would be if you explained your situation. If their likely response to your story would be to consider calling 911 on your behalf, then an ex parte request is reasonable. Otherwise, doing so will likely have a negative impact on your case.

What paperwork do you have to file to apply for an ex parte order?

You should be able to find the necessary forms on your court’s website, as well as instructions.  Most counties also have a Family Law Facilitator’s Office, which can be a great resource for free help.

Successfully filing for an emergency ex parte order can be intimidating. This is completely understandable, as it is a complex process in the best of times, let alone when conditions are such that an ex parte request makes sense. In addition, ex parte requests can undermine your case when filed unnecessarily or improperly. It is critical to have an experienced family law attorney working on your behalf. If you would like assistance with your ex parte application, or to determine if it is appropriate to request an emergency order, Toeppen & Grevious can help. For more information, give us a call at 916-400-4516, or send us a message using our contact form.