WEB SITE - EX PARTE CUSTODY ORDERS
While ex parte custody orders are sometimes necessary, they can do a lot of damage if the proper procedure is not followed.
The requirements to obtain ex parte custody (when not associated with a protective order or the post separation family violence relief act) are set forth in La. C.C.P. Art. 3945 and Local Court Rule 38.1. [LINK TO RULE 38.1 OF THE LOCAL COURT RULES ON P. 18.] Such an application must contain the following:
- Specific facts in a verified petition or by supporting affidavit that immediate and irreparable injury will result to the child.
- An attorney certificate stating either the efforts that have been made to give the other party reasonable notice when the order is to be presented to the Court or the reasons notice should not be required.
- If there is a prior order of custody, the application must be accompanied by a non-party affidavit as well as the suit record.
- The ex parte order must:
- Be endorsed with the date and hour of the rule to show cause which shall be set not more than 15 days after the order is signed.
- Provide specific provision for visitation of not less than 48 hours during the 15 day period, unless the verified petition or affidavit clearly demonstrate immediate and irreparable injury will result to the child as a result of visitation.
- Shall contain a provision prohibiting both parties from changing the child’s residence from the jurisdiction of the Court.
What should you do when presenting such an order to the Court?
- If there is not a prior order of custody, the attorney/petitioner should first file the petition or rule so that a Division can be assigned.
- The attorney/petitioner should fax/deliver the pleadings to the Judge in whose Division the petition/rule is assigned for review and so the Judge can assign a hearing date or HOC within the fifteen (15) day period required by law. If there is a prior order of custody, the prior order should also be faxed/delivered to the Judge in whose Division the petition/rule is assigned. If you cannot reach the Judge’s office in whose division the petition/rule is filed (an inordinate number of these seem to be filed on Friday afternoons or the day before a holiday), the petition/rule should be presented to the District Judge on duty. If the Duty Judge finds that the pleadings are in order, the request has merit and the Clerk is indicating there are no available court/hearing officer dates during the 15 day period, the Duty Judge should grant the ex parte custody order but place an expiration date for the end of the next business day in order to give the attorney/petitioner time to contact the Judge’s office in whose division the matter is filed so a hearing date can be assigned within fifteen (15) days.
- Ex parte orders that “suspend visitation” are viewed by the Court as an application for an ex parte custody under C.C.P. Art. 3945; the same procedure set forth herein and in Local Court Rule 38.1 should be followed.
Please note: On the motion of a party, or on its own motion, the Court may impose appropriate sanctions pursuant to La. C.C.P. art. 863D for certifications that are not based in good faith.