What is an Ex Parte Proceeding?

An Ex Parte Proceeding is a legal hearing without the presence of both parties. That seems to violate the provisions of the Fifth Amendment, but there are special reasons for allowing this type of hearing. The Fifth Amendment to the Constitution of the United States protects people from incriminating themselves. It also provides for fair treatment in court proceedings, including due process, gives defendants access to a grand jury and disallows trying someone twice for the same crime. One of the hallmarks of due process is fair and timely notification of both parties in a court hearing.

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Why Do Courts Allow Ex Parte?

The process is used mainly in urgent situations, when the presence of the second party could cause “irreparable harm” to the person bringing the suit. For instance, a person asking for a restraining order against another person because he or she feels threatened by the other party might file for an ex parte hearing. In the case of a person selling a possession shared by two people, one might ask for this type of proceeding getting a temporary order that restrains the second party from disposing of the asset.

Why Doesn’t this Violate the Fifth Amendment?

The ex parte hearing is generally followed within a short time by a regular court procedure. In some states, this period of time is as short as ten days. The key term applied here is temporary. If a wife gets an ex parte decision that grants her a restraining order against her spouse, she must then prove to the court at the regular hearing that her spouse is a threat to her for the restraining order to be continued. A parent seeking emergency custody of a child might ask for an ex parte proceeding. He or she must show that there is a threat to the child by the other parent. In a divorce, one party might find out that the spouse plans to leave the country with their children and appeal to the court ex parte to restrain the spouse from leaving. In this case, notifying the other spouse of the hearing might allow him or her the time to flee with the children. Because there must be a second hearing, the ex parte serves only to give temporary relief in an urgent situation. According to some legal authorities, the provision shows how flexible “due process” can be.

Are there Other Types of Ex Parte?

The term “ex parte” is also applied to communication between the attorney for one party with the opposing party in the absence of his or her lawyer. It is used to denote an occasion when a judge talks to one party in a suit without the other party being present, or discusses a case with a third party. In most instances, this is discouraged by the Code of Judicial Conduct.

Is Ex Parte Known by Other Terms?

When you see ex parte used, it is followed by the name of the person who asked for the hearing. You might see a proceeding referred to as “ex parte Smith.” Many attorneys use the words “application of” instead of ex parte, and follow it with the name of the person asking for the hearing. Still other legal professionals refer to these proceedings as “in re Smith,” meaning in the matter of Smith.

The ex parte is used when a regular hearing might cause “irreparable harm” to one of the parties. It is intended to ensure that when the regular hearing occurs, the “playing field” will be level. Property will still be available, children will be safe and accessible and there will be no physical harm to the claimants. With that purpose in mind, an Ex Parte Proceeding is a valuable tool that reinforces the intent of the Fifth Amendment.