Ex Parte Divorce Proceedings
Married couples can separate for some time before officially ending their marriage. During that time, different things remain unsettled, including child custody and property ownership. When there is an immediate danger or irreparable harm, or immediate loss/destruction of properties, the law can allow for Ex Parte Divorce proceedings.
Requirements for Ex Parte Divorce
For a party to file for ex parte divorce, they must be living within the court’s jurisdiction for a specified minimum period prior to the filing. Both parties must also be fully aware of the divorce. You can satisfy this requirement through a third-party server, personal notice, or mailed divorce petition. The court will then serve a notice to the other party in the shortest time possible unless this would cause harm to the person serving the notice. You should also make sure the service of the court proceedings is done correctly to prevent the case from being 
rejected or invalidated by the judge.
What is Ex Parte Divorce Motion
An Ex Parte motion is one made without giving notice to the opposing party. This is an exception to the general procedures for setting a noticed hearing, but may require at least minimal telephonic or similar notice, depending on local practice.
A party can petition for a Ex Parte Divorce motion when they urgently need to get an immediate order. Some specific temporary orders that can be sought on an Ex Parte basis include:
Child Custody and Visitation
In the event of a pending marital action, the court may make orders, either Ex Parte or on noticed motion, to decide the temporary custody of any minor children of the marriage and visitation rights regarding these children.
Orders in DVPA (Domestic Violence Prevention Act )- Restraining Order proceedings.
In a Ex Parte Divorce , a court may make temporary orders in a DVPA proceeding with respect to a party who has established a parent and child relationship with the child involved. In making temporary child custody and visitation order under the DVPA
- Not required to include a finding of paternity
- A custody order issued under the DVPA does not determine custody. Such an order, however, can survive the termination of any protective order.
Legal guidelines in granting temporary orders.
The legal guidelines for temporary child custody and visitation orders generally are the same as those for long-term orders.
Agreement of parties.
If there is an agreement between parties regarding custody, a copy of the agreement must be attached to a petition or motion. After filing the agreement, the court must enter an order to grant temporary custody, as stated in the agreement.
Ex Parte orders.
A custody order can be granted or modified in a Ex Parte Divorce only if there’s a showing of;
1) Immediate harm to the child, which includes acts of domestic violence committed by the parent, or patterns of sexual abuse on the child.
2) Immediate risk the child will be removed from the state.
When a court grants a custom order on an Ex Parte basis, there should be an order to restrain the party from removing the child from California. If counsel is aware of facts that indicate the child is facing a risk of abduction by a parent, then relief should be requested.
An Ex Parte order or visitation must provide details such as the day, time, place, and means of transport to limit the possibility of exposing the child to domestic violence and conflict and to protect all family members.
The court must also consider if the custody or visitation arrangement be limited to situations where the third party specified by the court is present, or the order is suspended.
Even though Ex Parte motions may not require formal notice, some form of notice may be required depending on the circumstances. Some motions like protective orders can be issued without notice. However, other temporary restraining orders may not be granted without notice unless there are facts in the declaration in support of the petition for the order. Or in the event, a great or irreparable injury would otherwise result to the applicant before the matter can be heard on notice.
Continuing from the outlined principles of Ex Parte divorce proceedings:
Subsequent Actions Post Ex Parte Orders
In situations where an Ex Parte order is granted, depending on jurisdictional requirements, the court will typically set a hearing date to allow the other party an opportunity to be heard. This hearing is crucial to maintaining the balance of due process rights since Ex Parte orders are initially made without the presence of both parties.
Notice and Legal Representation
The individual against whom the Ex Parte order is made must be served with a notice of the order along with any accompanying documentation, such as affidavits or declarations that were provided to support the Ex Parte motion. It is important for the recipient of an Ex Parte order to seek legal representation immediately, as the time between the order being issued and the set hearing date may be short.
Rights to Contest Ex Parte Orders
The opposing party has the right to contest the Ex Parte order at the subsequent hearing. They may present evidence or legal argument as to why the temporary order should be vacated or modified. If the opposing party fails to appear at this hearing, the Ex Parte order may be confirmed as a longer-term or permanent arrangement by the court.
Modifying Ex Parte Orders
In some cases, there may be a legal or factual basis to modify an Ex Parte order before the scheduled hearing. This can occur if there is a change in circumstances or if new evidence comes to light that was not initially considered by the court. Both parties have the right to file motions to alter or rescind Ex Parte orders, but they must provide compelling reasons for such changes.
Implications on Permanent Orders and Settlement
Although Ex Parte orders are temporary, they can sometimes influence the direction of permanent orders that the court may eventually establish. This is particularly true if the circumstances that led to the Ex Parte order persist or if the parties start to adapt to the temporary arrangement, making it a status quo the court may consider.
Protection of Rights
Ex Parte proceedings are designed to protect individuals and their property from immediate harm or loss, but such proceedings must also respect the due process rights of all parties involved. Both the individual who seeks the Ex Parte order and the opposing party should be aware of their legal rights and obligations throughout this process.
Legal and Judicial Oversight
The court provides oversight to ensure that Ex Parte orders are not granted frivolously or without sufficient cause. Judges must carefully consider the evidence and circumstances before issuing such orders. Furthermore, courts are generally cautious about maintaining fairness and ensuring that any urgencies addressed by Ex Parte orders do not come at the expense of justice.
To summarize, Ex Parte divorce proceedings offer a mechanism for addressing urgent matters that cannot wait for a full hearing. However, they are filled with requirements for notice, opportunities to contest, and the potential for subsequent modification. Through this balance, the legal system aims to protect the immediate interests and safety of at-risk parties and maintain the integrity of due process.
