How to Fill Out the Ex Parte Application
Hi, thank you for choosing My Court Coach. I’m Jylan, and I’ll be your instructor as we talk about the Ex Parte Application and Order, and an ex parte is an emergency. In order to complete this form, you do have to have an emergency. If you’re not sure what qualifies as an emergency, then please watch our other video that defines and goes over the different emergencies pursuant to the California Rules of Court.
We’re going to go over how to fill out the Ex Parte Application and Order form. This one is specific to San Diego County, but other counties will likely have a similar form, so this should be helpful to you wherever you are in California.
Now the hearing date time, and whether it’s opposed and unopposed, you do need to complete that so that the clerks know what day you are trying to set up the emergency hearing. As we discussed in a previous video, the hearing and date and time is set up pursuant to your local county. You have to look up the local county rules to figure out when you can set up the emergency hearing.
Notice of Ex Parte Application to the Other Party
When you do set up the emergency hearing, you have to also ensure that when you notify the other party, you find out whether they are opposing your request. There actually are situations where your ex parte can be unopposed. For example, if you’re requesting an ex parte to do a calendaring request and you and the other party agree to reschedule this hearing, this trial, or to set deadlines for certain issues coming up. When you do have an unopposed request, more likely than not, it is going to get granted.
Reasons to Make Ex Parte Application
Also, you must list the type of relief requested. Different types of relief are:
- temporary restraining orders
- order shortening time
- child custody and visitation
- order after hearing being submitted for signature
Most of the time, it’s child custody and visitation orders. That’s the primary reason why individuals go for emergency hearings.
Ex Parte Application Requesting a Temporary Restraining Order
You could mark temporary restraining order if you maybe filed for a temporary restraining order and the court denied it and now you are filing in a different method. This is just to restrain the other party from any abusive acts. That also could be against property. If the other person is doing things to diminish the value of a property that you both have together, then you can restrain them from doing that with a temporary restraining order. You could request an order giving you exclusive use and possession of the residence, for instance, and therefore they’re not allowed to be on the property.
Ex Parte Application Requesting Order Shortening Time
An order shortening time — this is a legal term. What it means is that when you file a Request for Order (an FL-300 form), then you can also use this ex parte form to ask the court to expedite your hearing date. Let’s say you’ve already filed your FL-300 (your Request for Order) and in that form you’re requesting child custody visitation, for example. When you filed that form, you already got a court date. That court date is probably two, three months out.
Now you go to court, set up an emergency hearing, and ask the court to expedite it because of an emergency. Again, you need to have an emergency in order for the court to grant you an emergency relief. The court can shorten that time, or expedite the time, by rescheduling the hearing to an earlier date. If the court orders that, then you are getting some sort of emergency relief. Of course, the other party is on notice of that because you would have given the other party this paperwork before you even set up this emergency hearing.
Ex Parte Application Requesting Judge’s Signature
For the order after hearing being submitted for signature, this is rare really used. You might find yourself in a situation where you do need to ask the court to sign orders right now. If so, you would have already had a hearing where the court made orders. The court would have asked one of the parties to fill out a document called a “Finding and Order After Hearing.” The “Finding and Order After Hearing” form is required to document the orders made at the hearing that you attended.
Usually the attorney prepares the “Finding and Order After Hearing” form, if there is an attorney on the case. If not, the court sends you to a facilitator’s office, that’s within the courthouse, to complete it for you. Usually when you have the “Findings and Order After Hearing” form, you just submit it to the court clerk for processing. It often takes months to get it back signed by the judge.
But maybe you’re in a situation where you do need immediate orders. Let’s say there’s conflict between you and the other party about custody visitation and there is a custody visitation order. But, let’s say the other party is stating, “Well, I don’t have to follow that custody and visitation order until it actually does become an order with the judge’s signature on it.” In that case, you would go to court and ask the court for that relief (to sign the Findings and Orders After Hearing form immediately). More likely than not, the court actually might grant it for you. It’s very dependent on your judge.
Ex Parte Application for Other Orders
Other sorts of emergency relief can be that the other party is not paying you spousal support or child support. Those rarely get granted. So the best sort of emergency relief is going to be found through the California Rules of Court. That’s the best way that you can get the court to grant you some sort of relief, because those are the only reasons that the court will in fact entertain your issue as an emergency.
Why is Ex Parte (Emergency) Relief Necessary?
In the part of the form where it says “ex parte relief is necessary because,” you just need to write why “immediate and irreparable harm will be caused to me, my children or my property.” And if that’s the case, then you explain to the court, how is there going to be immediate harm?
For example, “If I don’t get the sole physical custody of my child right now, then our child’s going to be continuously reporting sexual abuse by the other parent.” Something along those those lines. If you are citing something like that, you better have called Child Welfare Services or the police or taking the child to a medical professional to check out those allegations.
Time and Form of Notice
In the next field in the form, you write the name of the opposing party or opposing attorney. If there’s more than one party, you have to name and notify all of them. Did the opposing party receive notice? The answer should almost always be yes, unless there’s a reason not to. We went over that in a different video, where the notice would actually cause more damage.
If the other party did know that you’re going into request an emergency order, you have to write the date and time and the way that you notified the other party. It does vary from county to county, but notification in writing can be by text message or email.
The best form of notice is actually talking to somebody over the phone or even leaving a voicemail. You have different options. As long as that notice is provided and you’re being truthful in saying that you did provide notice, then you are fine. Just keep track of the dates and the time as to when that notice was made.
Explain Any Lack of Notice
If no notice was given, then you have to explain why it was not given. To support your request, you should attach an evidentiary declaration. There is no reason why you should not have any evidentiary declaration submitted for any one of these requests. So the declaration has to support of what you write here. The declaration would just list the facts that support your request. Those facts would probably include something you or the other party or a child said or did.
Attach a Declaration to Your Ex Parte Application
Those declarations need to include specific language in them in terms of content. Let me show you what those evidentiary declarations should look like. So Rule 5.151 actually tells you what the content of the declaration needs to look like. The declaration is essentially your statement that you’re providing under penalty of perjury, under oath as if you were in front of the judge telling the truth.
You must also say that the facts are within your personal knowledge. All the facts that’s written in your paperwork, it’s not from somebody else. This is something that happened to you. It’s not what’s been told to you by someone else. That demonstrates why the matter is appropriately handled in an emergency hearing, as opposed to being heard on the court’s regular calendar.
Immediate Irreparable Harm
You have to show immediate irreparable harm to you, your children, or your property. Then, you must write in your declaration the facts that prove irreparable harm or danger would occur if the judge doesn’t grant this order relief without notice, or with shortened time to the other party. If you are not providing notice to the other party, then you must show the court what harm or what danger would occur if you did notify the other party of this application.
Is This a Repeat Request?
Then you have to tell the court whether you’ve appeared before requesting the same relief. This is actually important. If you’ve been to court on the same issue several times and the court is denying your request, it’s important for the court to know that you’ve been here for a third time and the other party is not following the court orders.
On the other hand, it could work the other way, where the court thinks that you’re asking for emergency hearings that are not exactly legitimate. You should be careful about that too. It can work in your favor and also work against you depending on the legitimacy of your request.
Custody and Visitation
If you’re requesting custody and visitation within your application, then in your declaration you have to first state the most recent incident that happened. It has to show immediate irreparable harm to your child. What was that immediate harm? What was that immediate risk that the child will be removed from the state of California?
Then you have to describe each incident. Be very specific. You have to really describe it. Otherwise the court can deny your application for an emergency order. Tell the court exactly what the existing custody and visitation order is or what the arrangement is if there is no court order. Also, tell the court how you would want them change the custody arrangement, by way of an emergency.
If there is a current custody order, include a copy of it with your declaration. On the other hand, if there is no current custody order, then you need to explain where and with whom the child is currently living.
Attach the FL-305 Temporary Emergency Orders Form
You would have to complete this form called FL-105, if it hasn’t been filed, or if the information has changed since it was filed. If you don’t know what this form is, then you are really early in the process and you should think about filing a Petition to start a process in order for you to actually be able to go ex parte.
So you have to have an existing case with a case number in order for you to seek emergency relief. When you do have an existing case, you will already have this form completed. However, if it’s changed in any way, then you do need to update that.
Proper Declaration Format and Form
So this is what you would need for a declaration. It can be written on any paper that’s in support of the ex parte application. The courts do have a document that you can use. It’s called an MC-030. You can find that here. You can complete this and make sure that you will write your name and sign it and write who exactly you are. You can attach it to this emergency application form, so that would be your evidentiary declaration.
Proposed Ex Parte Orders
Going back to the Ex Parte Application and Order form, the next section asks if a proposed order has been submitted. You can submit one or you don’t have to. It’s better practice to submit a proposed order.
A proposed order can be something like this. You could provide something like this (FL-305) for the court, where all the court has to do is fill in the blanks. Otherwise, you can prepare your own ex parte proposed order. But the FL-305 is probably the best form to use if you have any one of these three issues: custody, visitation, and property control. There is an “other” box, and you can include what you’re requesting on here as well.
Prior Ex Parte Requests
The ex parte application next asks you tell the court whether you have appeared for the same relief, and if you have, if it was granted or denied.
You’re signing this under penalty of perjury so make sure that everything in this paperwork, as well as in your declaration is all true and accurate. You can even attach documents to your declaration as well.
You can’t have the declaration be more than 10 pages. You’d have to get the court’s permission to have the declaration be more than 10 pages. A good attachment would be a safety plan that you received from Child Welfare Services or a medical report of your child. Things along those lines would be appropriate to provide.
Getting the Ex Parte Order Back from the Judge
The rest of this form is actually completed by the judge. You will know whether the court denied it or granted it, and whether they have additional orders in place.
The court will also tell you whether it wants you or the other party to prepare a more formal order. That could potentially look like this (the FL-305 form) if you didn’t attach to this proposed order cause you checked the box “no” and the court would have preferred for you to prepare a formal order like this.
We hope that you found this to be helpful and thank you very much for your time.