Need an Ex Parte Motion? What is an Ex Parte Motion?

DISCLAIMER: Altiorem Legal Services (hereinafter, “Altiorem”) cannot and does not provide legal advice. Altiorem is not a law firm; Altiorem’s staff are not attorneys, cannot act as attorneys, and do not act as attorneys; and any information provided by Altiorem in this article or otherwise is not a substitute for legal advice from an attorney. The information contained in this article should not be construed as legal advice, as it is not intended to be legal advice; the information in this article is provided for educational purposes only. Again, none of the information provided in this article should be construed as legal advice, and nobody should rely on or use the information contained in this article in their legal matters.

What Does Ex Parte Mean?

Ex parte is Latin for “from one party.”¹https://www.law.cornell.edu/wex/ex_parte An ex parte motion is a motion for orders that a judge can grant without waiting for a response from the other side. These orders are generally used only for a short period of time before a hearing can be held. These motions can involve things such as the temporary custody arrangement of a child or a temporary restraining order.

What Requirements Are Needed for an Ex Parte Motion?

Ex parte motions are filed without serving the motion on the other party. Because of that, Rule 7 of the Utah Rules of Civil Procedure requires that when an ex parte motion is being filed the motion must contain the following elements:

1. be titled substantially as “Ex Parte Motion (short phrase describing the relief requested)”;
2. include a concise statement of the relief requested and the grounds for the relief requested;
3. cite the statute or rule authorizing the ex parte motion; and
4. be accompanied by a request to submit for decision and a proposed order.

Examples of When an Ex Parte Motion Is Appropriate

In the case of Axford v. Axford,²No. CIV.A. 09-2914, 2009 WL 2030755 (E.D. Pa. July 10, 2009). the Petitioner filed an ex parte motion asking the court to (1) direct the United States Marshals Service to effect service of the Petition; (2) direct the United States Marshals Service to confiscate the passports of the Respondents and the minor child; (3) prohibit the Respondents from leaving the jurisdiction of the court with the minor child pending resolution of this matter; and (4) schedule a hearing on the Petition.³See id.

The judge granted the request that the child, biological father, and biological father’s wife surrender their passports and travel documents, and it was ruled that entering the order was appropriate due to the following circumstances.

1. The father “absconded” (left hurriedly and secretly) with the child from the child’s residence in England without informing the mother, obtaining consent, or informing the English court.
2. The father married his now wife in the United States on the day he and the child were supposed to return to England, demonstrating his intent to remain in the United States.
3. The father’s wife purchased airline tickets that were used to remove the child from England.

In the case of Miller v. City of Philadelphia,⁴954 F. Supp. 1056 (E.D. Pa. 1997), aff’d, 174 F.3d 368 (3d Cir. 1999). the court opined that, in most child custody cases, ex parte judicial proceedings satisfy due process because the government has a strong interest in protecting children from “immediate abuse, and predeprivation process would insufficiently protect that interest.”⁵Id.

Utah Code § 30–3–10 (1989) states that “the best interests of the child and the past conduct and demonstrated moral standards of each of the parties” is the determining factor for custody arrangements. Furthermore, the courts consider the following:

The need for stability in [a] custodial relationship and environment; maintaining an existing primary custodial bond; the relative strength of parental bonds; the relative abilities of the parents to provide care, supervision, and a suitable environment for the children and to meet the needs of the children; preference of a child able to evaluate the custody question; the benefits of keeping siblings together, enabling sibling bonds to form; the character and emotional suitability of the custodian; and the desire for custody and the apparent commitment of the proposed custodian to parenting.

Even without the involvement of an ex parte motion, it is clear that the court will still grant emergency orders if the safety and well-being of the child are at risk. If the child is living in an unfit environment where it can be shown that the child’s needs are being neglected under this standard, there is good cause for the court to grant an ex parte motion, especially if the child is being protected from immediate abuse.⁶See Moon v. Moon, 790 P.2d 52, 54 (Utah Ct.App.1990).

Conclusion

To summarize the above:

• an “ex parte” motion is an emergency motion that is intended for only the judge to see and rule upon, without the knowledge or involvement of the other party; the other party does not get to see the motion;
• an ex parte motion must cite the authority under which it requests relief;
• an ex parte motion is usually used in child custody cases where the best interest of the child is at risk, as that would constitute an emergency;
• an ex parte motion must be accompanied by a request to submit and a proposed order (so, in total, you would have to draft and file three documents); and
• you can file an ex parte motion in cases where you think the factors of the case merit and require a decision from the judge without the other party’s knowledge.