ex-parte motion

[WhatToDo]

Everyone seems to be talking about an ex-parte emergency motion to enforce visitation. I am unfamiliar with this.

1. What exactly is an ex-parte motion and how does it work?

[socrateaser]

>Everyone seems to be talking about an ex-parte emergency
>motion to enforce visitation. I am unfamiliar with this.
>
>1. What exactly is an ex-parte motion and how does it work?

Each jurisdiction has its own name for certain legal processes, but the GENERAL breakdown goes like this:

Definitions:

1. Motion. Any application for a court order, other than the first pleading in a case (i.e., other than a complaint or petition).

2. Ex parte motion (usually: Order to (appear and) Show Cause (OSC)). Any motion where the other party is not present at the hearing. To satisfy constitutional due process, the order is issued by a court to inform an absent party that the court may make a final order materially affecting the party's liberty or property interests, and that a hearing is set on the court calendar, usually within no more than 30 days, to afford the party a meaningful opportunity to appear and defend against the order.

3. Ex parte Emergency order. An emergency order may issue from a court upon proof that the moving party will suffer irreparable or great harm unless the relief requested is granted immediately.

Ex parte orders are generally characterized by the court as either temporary restraining (TRO) or protecting (TPO).

TROs/TPOs must be personally served on the other party so that there is absolute proof that the party knows of the court order, and they generally expire if they are not served with sufficient time to permit the party to appear at the hearing.

4. Order. Any declaration from a court that affects a party's life, libery or property interests, and which may be either temporary (preliminary injunction, pendante lite (exists for duration of case), TRO, TPO), or permanent (final order, judgment, permanent injunction).

5. Judgment/Decree. An order that represents the "final" decision of the court. Traditionally, once a judgment is issued, the court will not entertain subsequent motions, except for "post-judgment" relief to enforce the judgment, because the case is final.

However, in family law, issues of child support and custody are NEVER final, so the tradition is discarded and parties routinely return to the court to try to obtain a new support or custody order, because times have substantially/materially changed, and the court should, in fairness, modify the so-called final orders found in the judgment/decree to reflect the changed circumstances of the parties.

6. Writ. Any order that instructs a third party to the case to do something required by the order (writ of execution or garnishment to sheriff, writ of cerciorari to a lower court, writ of mandamus to a public official).

Summary.

A complaint/petition is used to start a case and inform the court that there is a dispute between the parties. Whether to use one or the other depends on whether the case is "at law" (common law tort/personal injury/waiver of tort and suit in assumpsit (don't ask -- not relevant in family law), contract or criminal case), or "in equity" (family law, partnership, breach of fiduciary, probate, real property, tax, constitutional, injunction -- i.e., everything that's not "at law").

A motion is used to request that the court issue some order, whether temporary or permanent.

An order/judgment is used to change the law affecting the parties in individual cases, which is what courts are supposed to do -- adjust the legislative acts of the majority to do fair play and substantial justice for individual litigants.

Ed. Op. This last thing that courts routinely do, is modernly being referred to as "judicial activism." This is a political smokescreen intended to trick the average person into believing that courts make laws affecting everyone -- which is not the case.

Any decision of any court can be overturned by legislative action, so the courts cannot take over the role of the legislators, except with their consent. And, such consent is impliedly given, when legislators choose to do nothing to overturn judicial acts (and, for that matter, Executive/Presidential acts).

So, in the end, there is only one sort of "activism" in government -- "legislative activism."

Sorry to go so far afield, but I just couldn't restrain myself.

[WhatToDo]

WOW! So, from what I can tell, I can go to the Courthouse or a lawyer and be able to file an Ex-parte motion (possibly even an Ex-parte emergency order) to try to enforce my visitation with my daughter while we are awaiting the contempt and/or custody hearing?

[socrateaser]

>WOW! So, from what I can tell, I can go to the Courthouse or
>a lawyer and be able to file an Ex-parte motion (possibly even
>an Ex-parte emergency order) to try to enforce my visitation
>with my daughter while we are awaiting the contempt and/or
>custody hearing?

Yes, as long as what you've already filed isn't duplicative.

And, I can't say what sort of success you'll have. As for it being an emergency, the judge will not deem the other parent's frustrating your access as irreparable harm, so there's no emergency here.

[notnew]

In our state (MD) an ex-parte is an expedited hearing (within 2 weeks typically).

An ex-parte emergency hearing is w/in 24 hours and you can serve the other side directly the short form only with no supporting docs. so that they can appear the next day. Yes, the standard courts consider is irrepairable harm (to the child in our case) and I don't think a judge would consider denial of visitation immenint danger.

However, since the contempt process can take 60 days or longer, wouldn't it be prudent for him to file an ex-parte to enforce visitation (as long as it is not a duplicate filing as you said) while the contempt charge is pending? And wouldn't the success of that filing insure he would be able to see his child in the interim?

Just wanted to clarify your position on this and what the proper avenue may be. I have actually been through this exact process before and that is how it worked for me in my state.

Hope I'm not butting in where you don't want me to!

[socrateaser]

>In our state (MD) an ex-parte is an expedited hearing (within
>2 weeks typically).
>
>An ex-parte emergency hearing is w/in 24 hours and you can
>serve the other side directly the short form only with no
>supporting docs. so that they can appear the next day. Yes,
>the standard courts consider is irrepairable harm (to the
>child in our case) and I don't think a judge would consider
>denial of visitation immenint danger.
>
>However, since the contempt process can take 60 days or
>longer, wouldn't it be prudent for him to file an ex-parte to
>enforce visitation (as long as it is not a duplicate filing as
>you said) while the contempt charge is pending? And wouldn't
>the success of that filing insure he would be able to see his
>child in the interim?

Yes, he can file an OSC to enforce/clarify the existing order. But, it won't necessarily ensure visitation, unless the other parent will abide by the court's order. So, what usually happens is a stern warning and an order for makeup time. Ultimately if the parent won't cooperate, you're right back to the contempt hearing.