Requests for emergency, expedited and/or Ex Parte relief should be used extremely sparingly and typically only in situations where a child’s physical or emotional health is eminently in immediate danger and/or if there is a financial issue that if is not dealt with prior to a normally scheduled hearing would cause significant harm to one of the parties or minor child(ren).
Courts are very sensitive to wanting to ensure that both parties are provided adequate notice of hearings and an opportunity to be heard. Oftentimes, in a situation when an Ex Parte motion is brought and the other party is not provided notice, the party provided no notice is immediately deprived of the ability to argue against the allegations set forth in the moving party’s paperwork .
It is understandable that, at times, notice should not be given to the other party, as such notice could place a child in harm’s way. The Courts are aware of this; however, in an emergency request, Courts will want to know, very specifically, what notice was provided and/or if notice was not provided, the specific reasons as to why. Courts also have the ability to deny requests for this type of relief. Minnesota Statute 303.04, subdivision (e), states:
(e) Notice. The party seeking emergency relief must serve the motion and affidavit, including notice of the time when and the place where the motion will be heard, on the other party or counsel, unless:
(i) the party seeking emergency relief provides a written statement that the party has made a good faith effort to contact the other party or counsel and has been unsuccessful; or
(ii) the supporting documents show good cause why notice to the other party should not be required and the court waives the notice requirement.
—Minn. State. 303.04, subd. (e)
The Statute also sets forth the requirements that a party needs to follow when requesting ex parte or emergency relief:
(c) Requirement of Motion; Form. The party seeking emergency relief must state with specificity in a motion and affidavit:
(i) Why emergency relief is required;
(ii) The relief requested;
(iii) Disclosure of any other attempts to obtain the same or similar relief and the result;
(iv) If there was a prior attempt to obtain emergency relief, the name of the judicial officer to whom the request was made;
(v) if a prior request was denied for the same or similar relief, explain what new facts are presented to support the current motion.”
—Minn. State. 303.04, subd. (c)
In addition to this, the Statute also sets forth that a proposed Order must also be provided to the Court for the Court’s consideration.
In the advisory comments to the Rule, it states: “Rare situations may, however, permit or even demand that notice not be given to the other side before seeking relief from the court. Where destruction of property or evidence is threatened, assets appear to be concealed or are threatened to be concealed, or the abduction of children has occurred or is threatened, 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).” Minnesota Rule of Civil Procedure Rule 65.01 also goes further to state that permitting relief without notice can occur if, “it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result… “
It is very important to understand that emergency relief should be very thoughtfully considered before it is requested from the Court. If a request is made that is not considered to be an emergency by the Court, or requiring need for an expedited hearing, raising such a request to the Court could actually result in the Court thinking negatively about the party who brought the request and/or viewing the party as the party who “cried wolf”.
Obviously, there is a reason for these rules and Courts understand that children and/or property need to be protected in certain emergency situations. The determination of whether this form of relief should be raised is really one that needs to be discussed thoroughly with an attorney who has experience in dealing with these types of issues.
If you think you may need emergency relief now, please call our office at 651-647-0087 or reach out via our online contact form to speak with one of our attorneys today. We look forward to hearing from you.