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Divorce Help: What is an Ex Parte?
TemeculaDivorce posted on May 30, 2007 | views: 1929 | Tags: divorce, Hemet, temecula, Murrieta, attorney
Help by an experienced family lawyer and divorce attorney serving the Hemet, Murrieta, and Temecula areas of Riverside county, California.
Many people have heard the term ex parte, or they know the concept, but they do not understand exactly how it works.
An ex parte application is a form of relief available atfer a separation of the parties and in any divorce or family law matter, including paternity matters. The purpose of an ex parte is to obtain a temporary restraining order, also called a TRO. This restraining order prevents a party from doing something until the court has time to address the subject more thoroughly. Usually an ex parte order will grant custody of the parties' children to one parent, or it will order one person to stay away from the other until the couple can have a court hearing in front of a judge.
Ex parte relief is usually found in a or paternity situation where there is domestic violence between the parties, or where the parties have children.
In a domestic violence situation, the purpose of an ex parte is to obtain a TRO which orders the abusive spouse to stay away from the other party. This would include no phone calls, no e-mails, and no communication of any type. A restraining order would normally order the abusive spouse to move out of the house, to stay at least 100 yards away from the other party's home, job, car and person. It would also prevent the sending of any messages to the protected party, even through a third person, or by way of a gift.
The consequences of violating a domestic violence restraining order are severe, and can include up to one year in jail. After a temporary restraining order is issued, the protected party must show up in court to obtain a permanent restraining order. At that point, the alleged abusive party has the ability to tell his or her side of the story. If you are accused of perpertrating domestic violence, beware: anything you say in open court to defend the request for the restraining order can later be used to prosecute you. If you are guilty, seek the advice of an attorney before you go to court.
The other situation in which a party may request a TRO in a famiily law situation, whether it is a paternity action or a divorce, where the parties have children. Since an ex parte is an emergency request for temporary orders, and the orders are made without a hearing, the court will not grant a request lightly. In order to grant such a request, the court must find a true emergency. Legally, this is called having exigent circumstances and the potential of irreparable harm. Simply put, the court must find the child is in some sort of immediate and probable danger which is so serious that it cannot be corrected.
There are two types of emergencies the court will grant a temporary order for in a divorce situation. They are either one parent is about to flee the state with the child, or the child is in some sort of physical danger. Again, the tempoary restraining orders that are granted at an ex parte are only good for about three weeks. Some time before the orders expire, the parent requesting the order must return to court for a hearing. At the hearing, both parties have a change to address the court. Each party has a right to a lawyer.
If the court finds good cause, the TRO will be extended. If not, it will be dissolved. Prior to the custody order being made, the court will order the parties to attend mediation. Mediation is a meeting between a court official and both parents. The purpose of mediation is to try to settle the custody dispute informally. If the parents are unable to agree on a custody arrangement, the court will make orders at the next hearing. Only the parties are allowed to attend mediation. Attorneys are excluded from the process.
An ex parte in Riverside County as of the posting of this blog is done by filing paperwork before 12:00 noon in the local family law courthouse. The courthouse for the Murrieta and Temecula area is located in Hemet, California. The court will then have give you an answer by 4:00pm that day, telling you whether the ex parte was denied or granted. They will also give you a court date to have a full hearing on the issue of whether the restraining order should be extended.
A lawsuit must be filed before the court has the power to hear an ex parte application. There are three types of lawsuits which a person can file, these include a paternity action, a divorce or legal separation action, or a domestic violence action. If you do not uderstand how to file any of these papers, you should consult with a licensed attorney as soon as possible.
For more information, call Famularo & Associates for a free consultation. We are experienced divorce and family law attorneys who can help. You may also visit our websites at:
http://www.temeculadivorce.com or
http://www.familylaw-riversidecounty.com