• Due Process Requires Ex Parte Notice, Even in Family Law Matters        
  • November 2, 2010 | Author: Virginia Ann Leen
  • Law Firm: Virginia Leen Law & Mediation Offices - Kirkland Office
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    If you represent men in family law matters in Washington, it is common to have a client come into the office with a stack of papers — the first one being a court order already signed by a judge, kicking your client out of the family house, limiting or completely restricting time with his children, and ordering payment of bills and support. The orders contain a date to return to court approximately two weeks later so that he can present his side of the story. In almost every case like this I have seen, the man was given absolutely no prior notice that the ex parte orders were being sought, and given 20 minutes to gather his wits and personal property. After practicing family law in Los Angeles County for seven years prior to moving to Washington, I was shocked by this.

    The U.S. Constitution provides that the state shall not deprive a person of life, liberty, or property without due process of the law, which has been defined by the Fifth and Fourteenth Amendments as, at a minimum, notice and an opportunity to be heard. This was drilled into our heads in law school. In theory, RCW 26.10.115 requires notice of an ex parte hearing unless there is a finding that “irreparable injury” would occur if advance notice were given. The King County Local Rules, LFR 8(b) states: “Notice of Motion. The party asking for an Ex Parte Restraining Order (the moving party) shall give prior written or oral notice to the attorney for the opposing party or, if unrepresented, to the opposing party. The moving party or attorney shall certify to the court in writing the efforts which have been made to give notice to the opposing party. Such notice is required in all cases unless the moving party clearly shows by sworn declaration that immediate injury, loss or damage will result if notice is given.” It would be difficult to argue that this means anything but physical harm, and hard to imagine an economic injury that would be “irreparable.” However, family law attorneys routinely appear in the ex parte departments and obtain restraining orders without notice, proffering nothing more than a flimsy reason why no notice was given. In one case of mine, the wife’s moving papers didn’t even attempt to allege physical harm as the reason for no notice. The attorney stated only that the husband might cancel health insurance if he had notice of the hearing! The Pierce County commissioner who granted the order must have thought this was good enough.

    I am not trying to suggest that interim orders pending a hearing are not appropriate or necessary; I am simply focusing on the notice issue. Usually, the restraining orders are benign enough and contain common-sense restraints: no transferring of assets or termination of insurance policies, no harassment of the other party. If asked, the other party would probably agree to these terms without hesitation. When I have broached this subject with other attorneys, the rationale seems to be, “What’s the big deal? It’s only two weeks.” Well, the U.S. Constitution, for one. Second, the precedent-setting value of the orders is not lost on most family law attorneys. In two weeks’ time, if kicked out of their homes, many people choose to get an apartment rather than rent a hotel room, and this could change the direction of the case, including the residential schedule of the children, not to mention the overall sense of power and control on the part of the instigator, and the loss of power and control of the recipient, who must spend at least two weeks without records, checkbooks, computer and other home-office equipment, and tools. I consider this a substantial loss of liberty and property, sufficient to trigger the due-process clause of the Fifth and Fourteenth Amendments.

    The ugly truth is that getting hit with divorce papers and then having no guidelines to live by for the next two weeks makes for an awkward home life during that time. Getting these ex parte orders in advance of the first hearing allows attorneys to give their clients peace of mind, if they are the one making the first strike, of course. I assume that this is how and why the custom arose and why it is tolerated. However, as a family law attorney, I can attest to the emotional harm, animosity, and distrust created by this sort of power play, which is the only way it can be described. As attorneys, we should all be concerned with the erosion of the system caused by the disparity in the amount of evidence required by different judges and commissioners and the disparity of results based on the gender of the moving party.

    When I practiced in Los Angeles County, the courts were strict about the notice requirements and demanded a very good reason why an attorney could not give at least a few hours’ advance notice of the ex parte hearing. The relevant statute requires notice by noon the court day prior, whenever possible, and that must also be established by evidence. I saw many attorneys ordered into the hallway to call the opposing party, under the basis that justice required it, absent a very good cause. As a new attorney, I once failed to give notice, alleging fear of physical harm to my client, where there had been no actual prior acts of domestic violence. The presiding judge took the time to gently explain to me why notice was so important. He felt that if he could get the other party into the court and “look him in the eyes” as he explained the orders, he rarely saw those people back in court because of any violations, pending the next hearing. Furthermore, if a party is permitted an opportunity to appear in the first ex parte hearing, he or she can request visitation with the children, and any other incidentals that can be handled, such as obtaining necessary work equipment. Otherwise, as commonly occurs here, the restrained party needs to come back in to court once more prior to the main hearing and request these things. This is a large waste of judicial resources and attorneys’ fees that could have been avoided by giving the other side a chance to appear in the first place.

    It’s a stretch to think that most people could do much harm in the few hours between the time they get notice and the actual hearing. However, if they did, they would face sanctions and be liable for any damages very shortly thereafter. Likewise, do we really think it fair to presume that a person, given a few hours of notice, would cause physical harm to his or her spouse, but then, once served with the restraining orders, would suddenly no longer be a threat? That is what you must presume to justify violating that person’s due-process rights.

    It seems that a bad habit has evolved, and it needs to be examined. Our statutes require prior notice of any ex parte hearing. Inconvenience, awkwardness, and the strategizing of sharp-shooting attorneys should not abridge the law, and place the burden and cost of correcting the violation on the wronged parties. The court needs to police itself for this type of violation. The Constitution requires it. 

    Virginia Leen has practiced family law in California and Washington since 1996. She attended Loyola Law School in Los Angeles. She can be reached at [email protected].