How are ex-parte orders constitutional as it is a violation of due process? The argument that the orders are "temporary" and for "emergency" only does not negate the need for the constitution to be amended. And these ex-parte "temporary" orders usually end up being permanent, especially regarding custody as time passes and this becomes "status quo".
In the years after 9/11, the U.S. is afraid of its own shadow. So ex parte orders that have permanent effect are in vogue. These days, temporary is a euphemism for "permanent", but the nomenclature makes all the difference.
This means one can get arrested on a bogus allegation and handed a "temporary" order of protection and excluded from one's home for years. This is a presumption of guilt until proof of innocence is established: the exact opposite of what our quaint Constitution provides for. Over-breadth no longer matters. One can summon cops to effect an arrest and then swipe money, property or kids. This is done every day and with rapidly increasing frequency. Child support is calculable out of thin air ('imputation') and can be enforced when the obligor is unemployed or illegally here in the U.S.; conversely, the wealthy can hide assets and avoid paying support.
In the old days, ex parte orders were essential to react to emergencies. These days, there is no such distinction in their use. In the old days, getting to the court house first made no difference. Today, it makes all the difference. Once the people decide they have had enough, perhaps they will enact changes to this apparatus before more families and children are damaged and the fabric of this society is utterly devastated and becomes like "Here Comes Honey Boo Boo".
When an exparte order is issued the respondent is typically noticed and has an opportunity to be heard in a short timeframe. In custody matters the temporary order can certainly be modified if it is in the best interest of the child.
Ex parte orders are temporary, usually valid for no more than ten days in most states and federal court. You can usually get into court to contest them sooner than that, if your lawyer notices up an emergency motion to vacate. They're allowed because sometimes the threatened action is extremely immanent and the harm not compensable by money.
For example,one parent in a divorce is going to move a child out of state tomorrow; the mayor is going to plow up the runways on a city airfield. (People who have been in Chicago awhile will recall the facts of the last incident.)
You do have to persuade the judge of these things among others to get such an order. And judges can be hard sells. I lost a motion for a TRO that would have barred an eviction with permanent and irreversible consequences for my client because the other party hadn't been served. (But your honor, I said, that's what an energy motion is!) Fortunately I was able to serve him, negotiate an agreed order, and have him in court between Friday and Monday, and my client wasn't evicted.
Ex parte orders can sometimes effectively decide a case or issue, but more typically put things on ice for a short period until you can get into court to oppose them.
Mary Katherine BrownFamily Law AttorneyBrooklyn, NY ·
In theory, ex parte orders are in effect for only so long as is necessary for all parties to be given notice and an opportunity to be heard. Sometimes, when all parties are heard, the result of the order stays the same...
