Ex Parte Hearings in Orange County Divorce Cases
Ex parte means a hearing without notice. In the context of Orange County, California family law cases including divorce, legal separation, custody, support, and post judgment issues, ex parte means to have a hearing either with or without notice to the opposing party to ask the court to enter some emergency order. Ex parte hearings are common but should not be used without purpose. All family law judges, including those in Orange County Family Law court rooms are always hesitant to make an order ex parte. Common situations where the court will entertain making an ex parte order include:
- Entering an order forcing a party to comply with the restraining orders on the summons;
- Entering an order prohibiting a party from doing certain conduct and protecting the other party (restraining order cases);
- Scheduling hearings;
- Providing an “order shortening time” so that an expedited hearing date will be provided to a party requesting a certain order where there is an exigency; and
- Making orders relative to child custody in order to protect a child from abuse or from being abducted.
California Family Code Section 2045 provides:
During the pendency of the proceeding, on application of a party in the manner provided by Part 4 (commencing with Section 240) of Division 2, the court may issue ex parte any of the following orders:
- (a) An order restraining any person from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, except in the usual course of business or for the necessities of life, and if the order is directed against a party, requiring that party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures.
- (b) A protective order, as defined in Section 6218, and any other order as provided in Article 1 (commencing with Section 6320) of Chapter 2 of Part 4 of Division 10.
This statute provides the authority for a divorce court to make an ex parte order. Although the statute does not reference ex parte hearings for scheduling purposes or with respect to custody orders to protect children, the California Rules of Court and Family Code sections relating to child custody provide mechanisms for such emergency hearings.
How Do I File for an Ex Parte?
There is an application process and notice requirement, generally, if you want to appear ex parte. Unless the ex parte hearing does not require notice to the other side (more on this below), you will need to contact the other party or their attorney within the requisite period of time as defined by the Orange County local Rules of Court. You have to provide the date and time of the hearing, as well as the department that the ex parte hearing will be heard. You also need to provide the other side with the purpose of the hearing. You will need to complete an application form and submit a proposed order and a short declaration supporting your request. Because the rules change so frequently regarding what the court requires you to provide, it is recommended that you call the Orange County family court clerk to make sure you are following the proper procedures.
Do I Need to Provide Notice to the Other Side?
If you do not provide notice to the other side, the court will generally not hear your ex parte, emergency request unless notice is not required under the Family Code. The circumstances in which notice is not required include the following:
- If notice to the other side would negate the relief sought, you do not need to provide notice. In simple language, this means that if you were to provide notice to the other side that you are going to court, and the other side would use that information to further damage you or your children, notice may not be necessary or required. Some common examples of circumstances where an opposing party will hide money or other assets if they are given notice of an emergency hearing, or where the opposing party is likely to abscond with a child.
- If you are filing a request for a temporary restraining order, no notice should be given to the perpetrator of the domestic violence. The court will issue a temporary restraining order and set a hearing date.
What Should I Expect When I Go to Family Court for an Ex Parte Hearing?
Because ex parte, emergency hearings are not scheduled ahead of time and there are other previously calendared cases to be heard on that date, you should not have high expectations that the court will provide you a significant amount of their time. This is one of the important reasons why your ex parte moving declaration should be very concise and to the point.
When you arrive at court, your requests and supporting declaration will have been already provided to the court. Depending on the judge, they may ask you questions about your request or simply enter an order approving or denying your request.
Do I Need an Attorney for an Ex Parte Hearing?
Whether or not you need an attorney to appear for or with you at a hearing will depend on the circumstances of the request being made. You should certainly take the time to consult with an attorney before deciding to appear ex parte, just to get some information about whether or not you really should have an attorney present.
For more information about ex parte hearings or other family law matters, contact our office today for a free consultation. Our attorneys are standing by and we are conveniently located in Irvine, just off the I–405 freeway.