The definition of ex parte is “for one party,” referring to motions, hearings, or orders granted on the request of and for the benefit of one party only. According to the Fifth Amendment to the U.S. Constitution, “No person shall … be deprived of life, liberty, or property, without due process of law.”
Due Process and Fair Notice
As a country, we believe one of the tenets of due process is fair notice to parties who may be affected by legal proceedings. Therefore, any time someone initiates a court proceeding, they are required to give notice to all parties involved. However, adequate notice of judicial proceedings to concerned parties may at times work irreparable harm to one or more of those parties. In such a case, the threatened party or parties may receive an ex parte court hearing to request temporary judicial relief without notice to, and outside the presence of, other persons affected by the hearing.
When Are Ex-Parte Orders Used?
Ex parte judicial proceedings are usually reserved for urgent matters where requiring notice would subject one party to irreparable harm. For example, a person suffering abuse at the hands of a spouse or significant other may seek ex parte a Temporary Restraining Order from a court, directing the alleged abuser to stay away from him or her. This is how Brooke Mueller was able to remove her children from Charlie Sheen’s home without giving him notice that the police were coming.
Concerns in Divorce Proceedings
The concern about ex parte proceedings in the context of divorce is that one of the parties can go to a judge, without telling the other side, with nothing but mere allegations and ask the judge to sign an Order which could include taking the children away from the other parent. I have seen many occasions when this process has been abused by a disgruntled spouse in an attempt to get an upper hand in a divorce proceeding.
The Temporary Nature of Ex-Parte Orders
It should be noted that a court order issued on the basis of an ex parte proceeding will be temporary and interim in nature, and the person(s) affected by the order must be given an opportunity to contest the appropriateness of the order before it can be made permanent. The problem is that during the interim, great damage can be done until the other party has a chance to give their side of the story.
Conclusion
Ex-parte orders are a necessary but potentially problematic part of the legal system. They are designed to provide immediate relief in urgent situations where notice to the other party could result in harm. However, the potential for abuse in divorce proceedings is a serious concern, as temporary orders can have significant impacts before the affected party has an opportunity to respond. Understanding the balance between urgency and fairness is crucial in the application of ex-parte orders.
