In a family law case, waiting weeks or months to get a standard court hearing is sometimes impractical. California law offers a powerful instrument in emergencies, the ex parte order. The tool is a swift, short-term court order secured with minimal prior warning to the other party and meant to avert imminent danger or substantial loss.
Knowing how this emergency procedure operates is essential in case you need to seek urgent judicial action. This guide will take you through the intricacies of ex parte orders. You will learn about the rigorous legalities, the procedural process of applying, the kind of emergencies such orders cover, and the rights of all parties.
Legal Basis of Ex Parte Orders in California
An ex parte order is not a casual request. It is a drastic step, overriding the standard legal provision that both sides must be fully informed and given enough time to prepare for a hearing. These orders are issued by judges only under real emergencies that are time-sensitive, since it is an exception to the basic rule of due process.
What is the High Legal Standard?
To obtain an ex parte order, it is not enough to say that a situation is urgent, but you must demonstrate it with concrete, persuasive facts. The court demands what is called an affirmative factual showing of either irreparable harm or immediate danger. This is a high legal standard to achieve.
Irreparable harm is damage or loss that cannot be compensated satisfactorily with money or fixed after the fact. Consider a scenario in which one parent has plausible intentions to permanently remove a child from the country, or a spouse is actively dissolving a joint business and concealing the proceeds.
Immediate danger is less complicated and usually includes physical safety threats, including recent domestic violence or reasonable threats of abuse to you or your child. A judicial officer will examine your request, and he must be satisfied that the crisis is so severe that it justifies the other party being deprived of the right to the standard notice period. This high standard must be met; otherwise, a judge will deny the application.
It is essential to understand that the court considers ex parte orders as the last resort. The norm is standard motions that give both sides weeks to prepare and respond. The ex parte process is only used in extraordinary situations where a normal hearing would cause the damage you are attempting to avoid.
Governing Law and Main Statutes
The regulations of ex parte applications are specific and elaborate and are mainly located in the California Rules of Court and the California Family Code. These laws give the guidelines that judges and lawyers should adhere to.
The procedural requirements of seeking temporary emergency orders in a family law case are stipulated in the California Rules of Court, Rule 5.151. It explains what documents you need, what to put in your declaration, and how to notify the other party. Rules 3.1200 and following govern general civil ex parte applications and set out many other procedural requirements.
The California Family Code gives the exact legal power to a judge to issue such emergency orders. Sections 240-246 are a general discussion of ex parte temporary restraining orders in all family law proceedings, including divorces and parentage proceedings. Other statutes that are targeted are more specific.
An example is the Family Code Section 3064, which is essential in child custody proceedings. It provides that a court cannot change custody on an emergency basis unless there is evidence of immediate harm to the child or an immediate risk that the child will be taken out of the State of California.
Statutes of Foundational Restraining Order (Ex Parte)
If the emergency is like domestic violence, the Domestic Violence Prevention Act (DVPA), located in the Family Code Section 6200 and thereafter, is the controlling law. The act is a strong one that enables a court to grant multiple ex parte orders to safeguard a victim.
A judge may order under Family Code Section 6320 to prohibit someone from harassing, threatening, or contacting you. This may involve stay-away orders that require the individual to maintain a certain distance between him and you, your home, your place of work, and your children's schools. In extreme situations, the Family Code Section 6321 allows a residence exclusion or kick-out order, which requires the suspected abuser to leave the mutual residence, even when their name is on the lease or title.
Moreover, Family Code Sections 6323 and 6324 enable a judge to issue interim rulings on child custody and property control. This may include giving you temporary sole custody to keep your child safe or freezing assets so that a spouse does not empty a bank account or sell valuable property. These laws give the direct, practical security required during a disaster.
The Step-by-Step Ex Parte Application Process
The process of getting an ex parte order is tedious and time-consuming. You should adhere to the court rules to ensure a judge considers your emergency request. This procedure may be divided into three stages: document preparation, informing the other party, and the hearing itself.
Phase 1: Preparation and Drafting of the Request
Your request is based on a set of required court forms. You must have an open family law case (such as a divorce or parentage action) or file to open one simultaneously.
There are several necessary forms you will have to fill out. The most crucial document is the Request for Order (FL-300), in which you state the orders you request the court to give. You should also complete the Temporary Emergency (Ex Parte) Orders (FL-305) with the proposed order you want the judge to approve. If your request includes financial issues such as support or attorney fees, attach a current Income and Expense Declaration (FL-150).
Your written declaration is the most essential part of your application. This is an affidavit, under oath, under pain of perjury, and you relate your story. It should be founded on what you know and full of particular facts, dates, times, places, direct quotes, and descriptions of events. It is not sufficient to have vague opinions or generalizations. You must employ this statement to draw a vivid and persuasive image of why your case is an emergency, which demands court intervention.
Phase 2: Notice Requirement
In most situations, you cannot apply for an emergency order in total secrecy. The law demands that you notify the other party involved (or their attorney). This is one of the foundations of the legal system in terms of fairness.
The main rule, commonly called the 10:00 a.m. rule, is contained in the California Rules of Court. You must provide the other party with the ex parte hearing notice before 10:00 a.m. on the court day preceding the hearing. This notice may be given by telephone or in writing and must contain the date, time, and place of the hearing and a particular description of the relief you seek.
The exceptions are very few in which a judge may waive the notice requirement. You would need to show a strong likelihood that providing notice would result in the harm you are attempting to avoid, that is, giving a violent partner time to attack or an uncooperative spouse time to conceal assets.
You should record your attempts to give notice on the Declaration Regarding Notice (FL-303) form. This report indicates the time and manner in which you contacted the other party, what you said to them, and their reply. This form is an obligatory component of your application.
Phase 3: Filing and Appearing at the Hearing
After completing your paperwork, you must submit it to the court clerk. It usually has a filing fee, but you may request a waiver if you cannot afford it. The treatment of ex parte matters may differ widely among local court rules. In certain counties, you can leave the papers with the judge to read in his chambers; in others, you must have a brief hearing in court.
During the ex parte hearing, which is relatively brief, the judge will read the documents you have filed, and they may also pose questions to you to explain why the matter is urgent. If the other side is informed and decides to attend, they will get a short time to present their objection. The judge is only interested in whether an emergency warrants the issuance of temporary orders. At this stage, the court will not determine the whole case.
Typical Situations and Ex Parte Order Types
The ex parte orders are not confined to any type of crisis. They may be used in family law cases requiring urgent court protection. It is always the imminence of harm or risk.
Personal Protection Orders
Personal safety is the most popular and well-known application of ex parte orders. Domestic Violence Restraining Orders (DVROs) are issued where there is an immediate and present threat of abuse between individuals in a close relationship, including spouses, partners, or family members. Orders can be made to prevent any contact and to make the abuser keep away based on evidence of recent abuse or credible threats.
In cases of harassment or threats by someone not in a family or dating relationship, like a neighbor or a coworker, you can request a Civil Harassment Restraining Order (CHRO). The bar is not any lower: you still have to prove that you are credibly threatening to use violence or that you are engaging in a pattern of behavior that is causing you significant emotional distress.
Emergency Orders Involving Children
The court may take decisive action when the child's welfare is in imminent danger. A judge can issue a temporary emergency custody order in case of child abduction risk or in case of parental conduct that exposes a child to imminent harm, including substance abuse or neglect. California Family Code Section 3064 explicitly permits such orders to prohibit a parent from taking the child out of the state, or where there has been recent domestic violence or sexual abuse.
A court may go further to prevent parental kidnapping. An ex parte order may contain conditions that a parent must turn in the child's passport, forbid out-of-state or international travel, and even order that a professional supervise all visitation. These are meant to ensure the child's safety until a complete hearing can enlighten the situation.
Protecting Finances and Assets
Ex parte orders also play a crucial role in preserving the marital estate in a contested divorce. You may ask the court to issue an ex parte financial restraining order if you have evidence that your spouse is about to drain bank accounts, sell off stock, or transfer title to real estate. This order can freeze assets and prevent both parties from making abnormal expenditures or disposing of property without a court order or written agreement.
A court may also temporarily grant exclusive use and control of property. For example, a judge may allow you temporary exclusive access to the family home to offer stability to the children or temporary control of a family business to prevent its destruction or mismanagement. Such financial orders maintain the status quo and leave assets to be divided fairly by the court after the case.
Navigating Next Steps and Rights After the Ruling
The judge's ruling at the ex parte hearing is only the start. Regardless of whether an order is made or not, there is a definite legal course of action, which is meant to ultimately lead both parties to the court to have a full and fair hearing.
If the Ex Parte Order is Granted
A signed Temporary Emergency Order (TEO) will be issued if the judge accepts your request. This order is binding and effective immediately. It will explicitly set out what particular protections or prohibitions have been imposed by the judge and will contain a date for a further court hearing, usually within 20 to 25 days.
The next important thing is to make sure that the other party is formally notified. You have to have an adult other than yourself to serve the other party with a copy of the ex parte orders and the notice of the hearing to be held. This official service of process is a legal procedure that provides the other party with official notice of the temporary orders and his or her chance to respond in court.
The Rights and Recourse of the Responding Party
When an ex parte order is served against you, it may be a shocking and traumatic experience. But you have fundamental legal rights. The ex parte order is interim, and you are entitled to a hearing.
Your primary defense weapon is the Responsive Declaration to Request for Order (FL-320). This is the form of court you use to narrate your story. You can employ it to refute the claims, present evidence, and tell the judge why the temporary orders will be discontinued. It is important to file this response in court before the hearing date.
The follow-up hearing, sometimes called an Order to Show Cause hearing, is your day in court. This is where the due process principle is reinstated. You and the other party can present evidence, call witnesses, and argue with the judge. The judge will be in a better position to decide after listening to both parties, and this decision may involve ending the temporary orders, changing them, or making them permanent.
In case of Denial of the Ex Parte Request
There are several reasons why a judge might refuse an ex parte request. You might not have supplied enough evidence to reach the high threshold of imminent danger or irreparable harm, or there might have been a procedural defect, for example, the lack of proper notice.
When your request is turned down, it does not imply that your case is finished. The judge usually reserves the case for a routine, non-urgent hearing in many weeks or months. This will enable you to get more evidence and present your case in the standard court procedure.
Otherwise, consider alternative legal options, including mediation or a regular Request of Order with a standard schedule. A denial merely means that the circumstances fell short of the rigid legal definition of an emergency, not that your underlying request is not meritorious.
Frequently Asked Questions About Ex Parte Orders in California
How quickly can I get an ex parte order?
It is a fast process; thus, one can obtain an order fast, typically within 24 to 48 hours of making their request. After you have prepared all the necessary paperwork and served sufficient notice to the other party (where required), you will submit your papers to the court.
A judge can look at your request on the same day or the following court day, depending on the specific procedures of your county. If the judge believes there is a genuine emergency, they may sign the Temporary Emergency Order on the spot. This quick process is what makes an ex parte order a potent instrument in cases of imminent danger or the threat of irreparable harm.
Am I obliged to inform the other party before the hearing?
Yes, legally, you are supposed to give notice in most instances. According to the California Rules of Court, you must notify the other party (or his or her attorney) of the ex parte hearing by 10:00 a.m. on the court day before your appearance. This warning provides a minimum degree of justice, where the other individual can show up and present a short argument on their part of the story.
Only in exceptional and extraordinary cases can a judge waive this notice requirement. For example, where you can demonstrate that providing notice would expose you or your child to danger or enable the other side to leave the jurisdiction or dissipate the property you are attempting to preserve. You should record your attempts to give notice on a particular court form.
I was just served with an ex parte order. What are my rights?
It can be shocking to be served with an ex parte order, but it is essential to remember that the order is not permanent, and you have fundamental rights. Your most important right is a full court hearing within 20 to 25 days. The allegations can be written by submitting a Responsive Declaration (Form FL-320) to the court.
You can appear at the follow-up hearing, present evidence, call witnesses, and explain your side of the story to the judge. The temporary order was granted based on the version of events of one person; the full hearing is your chance to make sure that the judge hears both sides and makes further decisions.
Is an ex parte order a final order?
No, an ex parte order is not a final order. It is a short-term patch or a legal pause button meant to stabilize a crisis and avoid imminent harm until a full hearing can occur. The first decision that the judge makes is based on little information.
The order aims to maintain safety and the status quo over a short term, usually three weeks. Only at the scheduled follow-up hearing, when the judge can review written responses of both parties and hear testimony and arguments on both sides, will the final, more lasting decision be made.
Find a Restraining Order Law Firm
The ex parte order plays a crucial role in the California legal system. It is an effective instrument, a judicial order that could be used in case of emergency to offer immediate victim protection and avoid disastrous consequences. However, an ex parte order is not a definitive solution but a temporary fix.
This is done carefully to balance the urgency of action and the constitutional right to due process. The solution is at the follow-up hearing when the system balances by giving both parties a chance to be heard fully by a judge who makes a more permanent decision.
The ex parte order process can be complicated due to the complicated California rules and the stakes involved. Seeking or responding to emergency orders requires the advice of experienced legal counsel. At Goldman Flores Restraining Order Law Firm, we will guide you in knowing your rights, reviewing your case, and ensuring you can defend yourself, your children, and your property. Call us at 213-341-4087 to learn more about ex parte orders.
