Ex Parte Orders
Ordinarily, courts issue orders regarding custody after hearing evidence at a trial. However, most family law practitioners know of and have utilized the ex parte emergency order of temporary custody. In emergency situations a parent may file a petition asking for temporary custody, and a court may issue an ex parte order awarding emergency temporary custody prior to a formal hearing. It is an effective tool if the procedural requirements are followed closely and used only in instances of exigent circumstances.
Immediate and irreparable harm under La. Code of Civil Procedure:
La. Code Civ. Proc. art. 3945 sets forth the requirements for obtaining ex parte emergency custody in a divorce proceeding. There must be a showing that a child will suffer immediate and irreparable harm unless the court issues temporary custody order to protect the child. The harm must be immediate, meaning it would occur during the time before the court could schedule a hearing. The harm must be irreparable, meaning it cannot be reversed once the child is exposed to it.
Once the request is filed, the court will set an immediate hearing to assess the situation and hear evidence from the petitioning parent. If the judge grants the emergency custody order, then a formal hearing will be set, usually in a relatively short amount of time. The other parent will then be notified of the formal hearing for them to attend and present their defense. The emergency custody order will expire on the day the formal hearing is set. Judges are often reluctant to sign ex parte orders, and will decide each case on its specific facts and circumstances.
The civil warrant:
What is possibly lesser known among family law attorneys is the provision of law set out in La. R.S. 9:343, which allows the issuance of a civil warrant commanding law enforcement to assist in physically returning a child held in violation of a particular custody order. This provision also has exact steps that must be followed in order to be utilized. However, if performed properly R.S. 9:343 can provide stronger and swifter relief to the applicant parent.
Other instances of ex parte relief:
The Domestic Abuse Assistance Act is found at La. R.S. 46:2131 et seq. It permits domestic violence victims to file a petition for ex parte custody to protect their child from the effects and threat of domestic abuse from the other parent.
Children’s Code art. 1564 et seq. provides a basis for a parent to petition a juvenile court for immediate protection from a violent environment that the other parent poses.
The Post-Separation Family Violence Relief Act is found at La. R.S. 9:361 et seq. It provides for the removal of a child from physical danger by the other parent.