Can I Obtain an Ex Parte Emergency Order if My Ex Does Not Follow the Child Custody Orders?

I am often asked about Ex Parte Applications for Child Custody Orders. If you have heard the phrase Ex Parte, but aren’t sure what it means read this post.

Here is a question I received today:

Question:

How do I word my ex parte application for a child custody order modification? My ex has 1st, 3rd, and 5th weekends. We had court on 9/6/23 and my ex has not been complying. My ex has a breathalyzer device in his car per the court order. They have 15 minutes to submit. My ex has been passing the time limit and says I can’t control him. Our children are being left with other people on during his visitation time. The children are  6 and 10 and say they don’t want to go. It is too much for them. Our follow-up hearing is not until 4/19/23. The police have  been called out twice.

Answer:

The key to an ex parte application is express to the court that the children face a real and immediate danger to their well being. What you have described is bad, but I am not sure it rises to the level of emergency required for an ex parte application. Does he take the alcohol test each time he drives the children, but he is late to test? As long as he takes the test each time I don’t think you will convince a judge that this is an emergency. Leaving the kids with other people is bad, but again I don’t think it will convince a judge that this situation meets the requirements to file ex parte. Instead, I would recommend that you file a noticed motion using the FL-300 form and ask the court to modify it’s order based on your ex’s behavior. You will probably be given a hearing date about 2 months from the date you filed which is better than waiting until next April.

 

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