What is an Ex Parte Custody Order in Wellesley, MA?

Ex parte custody orders are orders issued by the court after hearing from only one side. They’re issued on an emergency basis when the risk of harm to a child is so great that waiting for a two-party hearing to get an order would be too risky. That said, if a court believes a risk exists but not enough of one for an ex parte order, the judge will typically order a quick hearing date.

Even if a judge issues an ex parte order, they usually schedule a two-party hearing to allow the other side to be heard. In the meantime, the order remains in place pending the two-party hearing. If you believe you need to pursue an ex parte custody order in Wellesley, MA, read on.

When should you seek an ex parte order?

Whether you’re seeking shared custody or sole custody, you generally need to demonstrate that there is a significant threat to the child’s (or parent’s) safety to obtain an emergency custody order in Massachusetts. Severe mental illness, substance abuse, physical or sexual abuse, or serious neglect all qualify as valid reasons for seeking an emergency custody order. The more supportive evidence you have, such as from the Massachusetts Department of Children and Families (DCF), the stronger your position will be to garner an ex parte custody order.

Are there any caveats for filing an emergency custody order?

Filing motions without a genuine emergency can seriously damage your credibility with the judge. Courts take emergency requests quite seriously and expect them to be used for true crises. If you submit an emergency motion without sufficient justification, it could hurt your standing in future proceedings, even if your intent was not to misuse the process but did so regardless.

For instance, if you file for emergency hearings in Wellesley to resolve minor disagreements or non-urgent matters, and judges see you using court resources unnecessarily, they may become annoyed and, as a result, less likely to grant emergency relief to you moving forward. Therefore, it’s important to objectively assess whether your situation truly qualifies as an emergency before filing. Misusing the emergency process can easily backfire.

Since emergency motions require some safety concern, it becomes harder to argue that a situation is an emergency if the issues are purely financial. However, if there is a risk to you or the children, and the protection you need involves removing your spouse from the home to gain exclusive use and occupancy, a judge is more likely to consider your case a good fit for an emergency custody filing. While this type of move potentially has financial implications, the underlying issue usually must be rooted in safety. There are very limited circumstances under which an emergency order will be granted on a purely financial matter.

What is the process for getting an ex parte custody order?

Typically, a party will file an emergency custody motion to initiate the process. The court can either reject it outright, issue an ex parte order, or order a quick hearing, effectively reducing the notice requirement. Instead of the typical 7-day notice or more, the other party may get a shorter notice to attend the hearing.

Where a judge issues an ex parte order following the hearing, it generally remains in effect pending further order of the court. In the meantime, the court will schedule a further hearing and the person filing the motion has to serve the other party timely. The other party can choose to attend this hearing, often called the two-party hearing, and argue against continuing all or part of the ex parte order. The parties will have the opportunity to speak before the judge at the two-party hearing.

A judge may also choose not to grant an ex parte order. Judges typically deny requests if they believe there isn’t a valid reason to issue one. If the judge determines there’s no immediate substantial risk to the child, the request may be delayed, and a hearing may be scheduled for later. The defendant will receive notice of the hearing and their right to attend and present their case.

Both parties can explain why an ex parte custody order should or shouldn’t be issued at the two-party hearing. If the judge decides against issuing an ex parte order but still wants to schedule a two-party hearing, you may choose at that time not to proceed with your request and ask that the hearing be canceled. But this rarely happens. When emergency motions are filed, the parties usually proceed at least with the two-party hearing.

What can a judge grant in an ex parte custody order?

In an emergency motion, you can request custody of your child, meaning the child will live with you unless a judge changes the order later. You can also ask the court grant you exclusive use and occupancy of the home.

In addition, through a restraining order, which is a separate, but related proceeding, you can ask the court to prohibit the other party from having any contact with the child. This may require the defendant to stay a specified distance away from the child and avoid any contact while the order is in effect unless a judge grants permission. Additionally, the court may order the defendant to maintain a certain distance from where the child attends a Wellesley school or daycare.

If the defendant has permission to have contact with the child but not with you, and the child lives with you, the defendant must communicate only with the child and not with you.

Restraining order can be issued out of either the probate and family court or a district court. The probate and family court can modify a district court judge’s order concerning custody and contact. However, even if the probate and family court changes parts of the order related to the child, all other aspects of the district court order will remain in effect.

You can also request the defendant pay for temporary support if they are legally obligated to provide it. You may similarly request child support, medical bills, lost wages, expenses for changing the locks, or any other related expenses.

How long is an ex parte order good for?

If the other party isn’t involved, the initial order generally remains in effect pending another order – usually at least until the two-party hearing. This follow-up hearing is usually scheduled within a couple of weeks of the first hearing, though it could occur sooner or later, depending on the court schedule. The judge will inform you of the hearing date when issuing the first order, and the date will be included on the order itself.

How can you change an ex parte order?

The person who requested the ex parte custody order cannot change or end it without contacting the court and asking the judge to make those adjustments. Even if the moving party seems to allow or request actions prohibited by the order, the other party will still be in violation unless a judge modifies it.

Find a Wellesley child custody attorney to help pursue an ex parte custody order

Seeking a custody order can be a complicated and stressful situation. Skilled counsel can make the process easier while increasing your likelihood of finding a positive outcome.

At Farias Family Law, our team of compassionate Wellesley family law attorneys have vast experience securing ex parte custody orders for our clients and can help you secure yours. Call us today.