The United States Constitution's fifth amendment requires "due process of law" in judicial proceedings, which requires both parties being present or at least having fair notice. An ex parte order violates that general concept, so it is only allowed under the Constitution and by case law to happen in rare situations, which situation are defined by federal or state law.
What Is an Ex Parte Order?
The term "ex parte" (pronounced "ex-par-tay or-der") means that something in a legal situation is done with regard to another party without that party present. The term comes from Latin meaning "on one side only."
When Ex Parte Orders Are Allowed
Ex parte orders are only allowed in certain defined circumstances because they can be unfair and violate the due process requirement of the United States Constitution. Under the due process doctrine, both parties must have the right to tell the court their side of the story.
But in the rarest of cases, a judge will issue an ex parte order in an urgent matter, but allow a greater level of due process in a later hearing. Most often, ex parte orders are done in cases of domestic violence or child abuse and generally in an emergency situation.
A temporary restraining order is one of the most common types of an ex parte order, where the judge is compelled to order one party to stay away from the other party to prevent bodily or serious emotional harm. But the party who is impacted by the restraining order generally will have a hearing as quickly as possible to explain the other side of the story to the judge. The complainant can then ask the judge for a restraining order of a more permanent nature while the respondent can ask for the restraining order to be removed or modified to be less onerous.
Laws exist in every state to allow ex parte orders, but each prescribes different reasons for allowing them and different time frames for the hearing that necessarily follows. Different judges see these kinds of orders differently—some are quick to issue them in almost any case, while others issue them only in the most urgent of circumstances to avoid immediate and irreparable harm to the person asking for the order.
The judge issued an ex parte protective order that requires Jim to stay at least 500 feet away from Karen at all times until the court can hear a response from Jim and determine a more permanent arrangement. Karen would have had to convince the judge that she was in imminent danger from Jim and that giving him notice of a later hearing and allowing Jim to be present to share his view of the facts would cause her immediate and irreparable harm in order to convince the Court to issue the ex parte order.
While ex parte orders in divorce or custody actions often favor the mother at the expense of the father, this is not always the case. A father who has custodial care of the children can secure an ex parte protective order to restrict the mother's involvement if she has been threatening or can be shown to be mentally unstable. If the children or the father are in a risky situation which does not allow time for a formal notice and hearing, the judge may issue a temporary ex parte protective order until a reasonably noticed hearing can be held.