It is no secret that the San Diego Family Law Courts are overutilized, overworked, and overbooked. When a party files a motion with the court it can often take several months, or longer, to get a hearing date! This can be frustrating for litigants who want to move their case forward towards closure. But what happens when an emergency comes up in your case and you cannot wait months for a hearing date? Luckily, there is a procedure and solution to allow the court to hear an emergency issue within a day or two, and that is called an “Ex Parte” hearing. At an Ex Parte hearing, judges can make temporary emergency orders, when appropriate.
Pursuant to California Rules of Court, Rule 5.151(b), “[t]he purpose of a request for emergency orders is to address matters that cannot be heard on the court’s regular hearing calendar….[and] the process is used to request that the court:
- Make orders to help prevent an immediate danger or irreparable harm to a party or to the children involved in the matter;
- Make orders to help prevent immediate loss or damage to property subject to disposition in the case; or
- Make orders about procedural matters.”(emphasis added.)
As you can see from above, only certain situations qualify as an “emergency” for Ex Parte purposes. With respect to the parties’ themselves, or their children, an Ex Parte request can only be made if there is a risk of an immediate danger or irreparable harm. For example, if one party is threatening to move, or has already moved with the minor child outside the County of San Diego, the other party can file an Ex Parte application to have the judge address this issue. Another reason why a party might file an Ex Parte application is if there is a threat of immediate loss or damage to a community asset. For example, if one party has listed a community residence for sale without the other party’s agreement, then the party who did not agree to sell the residence can seek the court’s immediate assistance.
Although parties may think that their issue is an emergency, as seen above, there are strict qualifications for what constitutes an “emergency” in the court’s eyes. If the party’s issue does not fall within these qualifications, then the party must file a traditional motion and wait for a hearing date.
Another, more common reason to appear Ex Parte is to resolve procedural matters. For example, if a future hearing date needs to be continued to a later date then one party, or both parties jointly, can go in Ex Parte to resolve the issue. For procedural matters, the strict requirements of proving an emergency exists are not necessary.
Procedurally, Ex Parte hearings are different than traditional motions because the timeframe to have your issue heard by a judge is greatly reduced. Pursuant to California Rules of Court, Rule 5.3.1, the party requesting an Ex Parte hearing must notify the other party of the Ex Parte no later than 10:00 a.m. the business day before the Ex Parte hearing. The moving party must also notify the court by either calling the court or appearing in person at the court’s business office no later than 10:00 a.m. the business day before the requested hearing date. The party’s moving papers must be filed with the court no later than 12:00 p.m. the business day before the hearing date and the papers must be served on all parties by 2:00 p.m. In addition to the party’s moving papers, the party must complete and file the Ex Parte Application and Order – Family Law form.
An often-forgotten requirement for all Ex Parte hearings – save for those addressing procedural matters – is the filing of a Request for Order. Pursuant to California Rules of Court Rule 5.151(c) a party must generally file a Request for Order that identifies the Ex Parte relief sought. This requirement is because most Ex Parte orders have a maximum 21-25 day duration. After the court makes an Ex Parte order it must set the issue for hearing at the earliest possible date, but no later than 21 days or, if “good cause” appears to the court, 25 days from the date of the Ex Parte orders. At the hearing the judge will decide whether to make his or her order permanent. Having a hearing date within 21 days allows both parties to update and file detailed pleadings for the court’s consideration.
In order to determine whether your Ex Parte request is appropriate, it is important to discuss your case with an experienced family law attorney. Speaking with an attorney can help you navigate the procedural and substantive requirements of an Ex Parte request.
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