When Can I file an Emergency or Ex Parte Motion In Minnesota Family Court?

Emergency and Ex Parte Motions in Minnesota Family Court

If you are going through a Minnesota divorce, custody or other family court proceeding and want to ask the Court to do something or grant you a particular form of relief, you typically would file a document called a Motion. Generally, Motions filed in family court need to be served upon the other party at least 21 days prior to the motion hearing (or 24 days if served by mail). This gives the other party time to serve a responsive motion upon you.

In certain situations, however, the circumstances are such as to warrant a court hearing on the matter on an expedited or emergency basis. And, on rare occasions, the Court may allow you to file a motion without even providing the other party notice that you have done so. Below is a breakdown of common scenarios in which the Court will allow you to forego the typical 21-day service requirement and file a family court motion on either an emergency or ex parte basis.

Emergency Motions

You may be permitted to bring an emergency motion before the Court if certain requirements are met. First, along with your Motion, you would need to submit an Affidavit stating with specificity why you are requesting emergency relief. Emergency relief is typically only granted if the Court finds that your children are in immediate danger of physical harm, or that parenting time with the other party is likely to cause physical or emotional harm to the child. Because emergency relief is typically only granted in family court if your children are in danger, you will likely be unsuccessful in obtaining such relief for financial issues, such as your ex’s failure to pay child support. Some common reasons a Court may grant emergency relief is if the other party has abused the child, the other party has become incarcerated and is unable to care for the child, or the other party has a severe mental health crisis.

Second, along with your Emergency Motion, you would also need to specify the exact relief you are requesting. It is common for parents to seek temporary sole legal and sole physical custody of their children during the emergency. It is also common for parents filing emergency motions to request that any parenting time exercised by the other parent be supervised. Lastly, depending on the circumstances surrounding the emergency, parents may ask their ex to submit to drug testing, a chemical dependency assessment, a psychological evaluation, or domestic abuse programming. The documents obtained from these assessments and evaluations can later be used in Court to convince the Judge why any temporary custody awarded to you should become permanent.

Third, when you bring an emergency motion before the Court you are required to disclose any prior attempts to obtain the same or similar relief, as well as the result of that attempt. For instance, if you previously filed for an Order for Protection (OFP) seeking temporary custody of your child which was ultimately denied by the Court, you would need to disclose that fact along with your emergency motion. You would also need to present to the Court any new facts that would support your current motion, as courts do not like to relitigate facts and issues that were already decided in a previous case. Of course, if your OFP was successful, you would also need to disclose that fact, but the fact that an OFP is in place may further support your emergency motion.

While emergency motions can be heard by the court on an expedited basis, you still need to provide notice of the motion hearing date to the other party. If your motion affects the issues of custody or parenting time the court will typically schedule a motion hearing within 14 days.

Ex parte Motions

While general emergency motions must be served upon the other party, there are rare occasions in which you may file a motion with the court without providing the other party with any notice. This is called an Ex Parte Motion. The requirements stated above regarding emergency motions also apply to ex parte motions. However, in addition to those requirements, if a party wishes to file an ex parte motion with no notice to the other party, that party should be prepared to explain to the Court the efforts made to notify the other party—or the reasons as to why such efforts were not made.

Specifically, before the Court may issue an ex parte order, the party seeking ex parte relief must submit an affidavit with their motion showing that they have either made a good faith attempt to contact the other party (but have been unsuccessful), or the motion and supporting documents show good cause why notice to the other party should not be required. One common reason in which ex parte relief is typically granted is when one parent has kidnapped or abducted the child and fled to another State. In such a situation, an ex parte order may be necessary so law enforcement in the other State can assist in getting the child extradited back to Minnesota. Another common scenario in which ex parte relief is granted is when a parent has threatened to harm themselves or the minor child, and the child is currently in that parent’s care. In such a situation, especially when a parent’s mental health is in issue, it is often important for the Court to issue an order so the child can be removed from that parent’s care prior to that parent learning that a court proceeding has been initiated against him or her (and possibly harming the child in frustration).

While an ex parte order may be issued by the Court without the other party receiving notice right away that a motion had been filed, each party will eventually have an opportunity to go to court and argue either for or against the ex parte order remaining in effect. All ex parte orders must include a return court hearing date in which the parties are able to make their arguments. If the ex parte order affected custody or parenting time, this Court hearing must occur within 14 days of the Order being issued. If the party who originally filed the ex parte motion is successful, the ex parte order will be extended pending further agreement or order. If the other party is successful, the ex parte order will be vacated as if there was never an Order in the first place.

Conclusion

It is important to note that emergency motions and ex parte motions do not mean the same thing. However, in many situations both emergency and ex parte relief may be justified. Emergency relief is typically appropriate where there is urgency that makes the typical 21-day deadline unworkable. Even where exigent circumstances justify shortening the deadlines, they do not usually excuse the giving of notice to the other party. Rare situations may, however, permit that notice not be given to the other side before seeking relief from the Court. Where the abduction of children has occurred or is threatened, where immediate and irreparable injury will result, or other situations exist where the giving of notice is likely to make any relief impossible to obtain, the court may consider the matter ex parte (without notice to the other side). Any order granted without notice to all parties must be of extremely short duration and the court still must hold a hearing upon notice to all parties before continuing or extending the relief.

If you want to file an emergency motion or ex parte motion due to the urgency of the situation, or if you have just been served with an ex parte order, contact the child custody and family law attorneys at RAM Law PLLC to schedule your free case evaluation.