COURT PROCEDURE MATRIMONIAL LAW

Ex Parte Relief ,POST JUDGEMENT
A. Litigation Planning
§6.32
VARIES COUNTY TO COUNTY
The ex parte order practice varies from county to county, indeed from judge to judge. In some instances, ex parte orders are routinely granted, particularly status quo orders, orders for custody and child support, particularly if parties are separated, and general orders preserving assets or to maintain life or health insurance. Sometimes particular relief is needed for an individual situation.
CRITICAL DECISION IN FAMILY LAW
Care should be taken in determining which ex parte orders to seek at filing, as this decision can be critical for client protection and in setting the tone and direction of the action. Clients should be thoroughly informed of the ex parte options available.
ATTORNEY DUTY TO THE COURT
If ex parte orders are sought, the attorney must disclose to the court all material facts known, whether or not the facts are adverse.
DISCLOUSER IS REQUIRED
This requirement of disclosure is another important consideration in deciding what the pleadings should state and what relief the party should seek.
NON EMERGENCY EX PARTE RELIEF INAPPROPRIATE
As a matter of practice, requesting nonemergency ex parte relief is considered inappropriate when one party knows the other is represented by counsel. Information concerning the representation of the other party should be disclosed to the court. Once the defendant or counsel has appeared, orders should only be entered by consent or following a hearing held on motion and notice.
　
HOW TO OBTAIN RELIEF
FILE MOTION
To obtain ex parte orders, the summons and complaint and any accompanying motions or affidavits should be filed with the court clerk.
TAKE JUDGEMENTS TO THE JUDGE
A copy of the complaint, any verified statement, additional motions or affidavits supporting the request for ex parte relief, and the proposed orders should then be taken to the judge to be signed.
GENESEE COUNTY HAS A STANDING ORDER
Some counties, such as Genesee County, use a standing order. Some counties require additional material. For instance, Washtenaw and Wayne Counties require Friend of the Court approval of certain orders. Wayne County also requires a Certificate of Conformity to be filed with proposed orders or judgments. See
B. Ex Parte Orders
1. Custody, Parenting Time, and Child Support
EX PARTE IS USUALLY IN THE BEGINNING OF THE CASE
§6.33
MCL 552.15 (1)
MCR 3.207
Rule 3.207 Ex Parte, Temporary, and Protective Orders
(A) Scope of Relief. The court may issue ex parte and temporary orders with regard to any
matter within its jurisdiction, and may issue protective orders against domestic violence
as provided in subchapter 3.700.
(B) Ex Parte Orders.
(1) Pending the entry of a temporary order, the court may enter an ex parte order if the
court is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable
injury, loss, or damage will result from the delay required to effect notice, or that notice itself
will precipitate adverse action before an order can be issued.
(2) The moving party must arrange for the service of true copies of the ex parte order on
the friend of the court and the other party.
(3) An ex parte order is effective upon entry and enforceable upon service.
(4) An ex parte order remains in effect until modified or superseded by a temporary or
final order.
(5) An ex parte order providing for child support, custody, or visitation pursuant to MCL
722.27a, must include the following notice:
“Notice:
"1. You may file a written objection to this order or a motion to modify or rescind
this order. You must file the written objection or motion with the clerk of the court within 14
days after you were served with this order. You must serve a true copy of the objection or motion
on the friend of the court and the party who obtained the order.
"2. If you file a written objection, the friend of the court must try to resolve the
dispute. If the friend of the court cannot resolve the dispute and if you wish to bring the matter
before the court without the assistance of counsel, the friend of the court must provide you with
form pleadings and written instructions and must schedule a hearing with the court.
"3. The ex parte order will automatically become a temporary order if you do not
file a written objection or motion to modify or rescind the ex parte order and a request for a
hearing. Even if an objection is filed, the ex parte order will remain in effect and must be obeyed
unless changed by a later court order."
(6) In all other cases, the ex parte order must state that it will automatically become a
temporary order if the other party does not file a written objection or motion to modify or rescind
the ex parte order and a request for a hearing. The written objection or motion and the request for
a hearing must be filed with the clerk of the court, and a true copy provided to the friend of the
court and the other party, within 14 days after the order is served.
(a) If there is a timely objection or motion and a request for a hearing, the hearing
must be held within 21 days after the objection or motion and request are filed.
(b) A change that occurs after the hearing may be made retroactive to the date the
ex parte order was entered.
(7) The provisions of MCR 3.310 apply to temporary restraining orders in domestic
relations cases.
(C) Temporary Orders.
(1) A request for a temporary order may be made at any time during the pendency of the
case by filing a verified motion that sets forth facts sufficient to support the relief requested.
(2) A temporary order may not be issued without a hearing, unless the parties agree
otherwise or fail to file a written objection or motion as provided in subrules (B)(5) and (6).
(3) A temporary order may be modified at any time during the pendency of the case,
following a hearing and upon a showing of good cause.
(4) A temporary order must state its effective date and whether its provisions may be
modified retroactively by a subsequent order.
(5) A temporary order remains in effect until modified or until the entry of the final
judgment or order.
(6) A temporary order not yet satisfied is vacated by the entry of the final judgment or
order, unless specifically continued or preserved. This does not apply to support arrearages that
have been assigned to the state, which are preserved unless specifically waived or reduced by the
final judgment or order.
Rule 3.310 Injunctions
(A) Preliminary Injunctions.
(1) Except as otherwise provided by statute or these rules, an injunction may not be
granted before a hearing on a motion for a preliminary injunction or on an order to show cause
why a preliminary injunction should not be issued.
(2) Before or after the commencement of the hearing on a motion for a preliminary
injunction, the court may order the trial of the action on the merits to be advanced and
consolidated with the hearing on the motion. Even when consolidation is not ordered, evidence
received at the hearing for a preliminary injunction that would be admissible at the trial on the
merits becomes part of the trial record and need not be repeated at the trial. This provision may
not be used to deny the parties any rights they may have to trial by jury.
(3) A motion for a preliminary injunction must be filed and noticed for hearing in
compliance with the rules governing other motions unless the court orders otherwise on a
showing of good cause.
(4) At the hearing on an order to show cause why a preliminary injunction should not
issue, the party seeking injunctive relief has the burden of establishing that a preliminary
injunction should be issued, whether or not a temporary restraining order has been issued.
(5) If a preliminary injunction is granted, the court shall promptly schedule a pretrial
conference. The trial of the action on the merits must be held within 6 months after the
injunction is granted, unless good cause is shown or the parties stipulate to a longer period. The
court shall issue its decision on the merits within 56 days after the trial is completed.
(B) Temporary Restraining Orders.
(1) A temporary restraining order may be granted without written or oral notice to the
adverse party or the adverse party's attorney only if
(a) it clearly appears from specific facts shown by affidavit or by a verified
complaint that immediate and irreparable injury, loss, or damage will result to the applicant from
the delay required to effect notice or from the risk that notice will itself precipitate adverse
action before an order can be issued;
(b) the applicant's attorney certifies to the court in writing the efforts, if any, that
have been made to give the notice and the reasons supporting the claim that notice should not be
required; and
(c) a permanent record or memorandum is made of any nonwritten evidence,
argument, or other representations made in support of the application.
(2) A temporary restraining order granted without notice must:
(a) be endorsed with the date and time of issuance;
(b) describe the injury and state why it is irreparable and why the order was
granted without notice;
(c) except in domestic relations actions, set a date for hearing at the earliest
possible time on the motion for a preliminary injunction or order to show cause why a
preliminary injunction should not be issued.
(3) Except in domestic relations actions, a temporary restraining order granted without
notice expires by its terms within such time after entry, not to exceed 14 days, as the court sets
unless within the time so fixed the order, for good cause shown, is extended for a like period or
unless the party against whom the order is directed consents that it may be extended for a longer
period. The reasons for the extension must be stated on the record or in a document filed in the
action.
(4) A temporary restraining order granted without notice must be filed forthwith in the
clerk's office and entered in the court records.
(5) A motion to dissolve a temporary restraining order granted without notice takes
precedence over all matters except older matters of the same character, and may be heard on 24
hours' notice. For good cause shown, the court may order the motion heard on shorter notice.
The court may set the time for the hearing at the time the restraining order is granted, without
waiting for the filing of a motion to dissolve it, and may order that the hearing on a motion to
dissolve a restraining order granted without notice be consolidated with the hearing on a motion
for a preliminary injunction or an order to show cause why a preliminary injunction should not
be issued. At a hearing on a motion to dissolve a restraining order granted without notice, the
burden of justifying continuation of the order is on the applicant for the restraining order whether
or not the hearing has been consolidated with a hearing on a motion for a preliminary injunction
or an order to show cause.
(C) Form and Scope of Injunction. An order granting an injunction or restraining order
(1) must set forth the reasons for its issuance;
(2) must be specific in terms;
(3) must describe in reasonable detail, and not by reference to the complaint or other
document, the acts restrained; and
(4) is binding only on the parties to the action, their officers, agents, servants, employees,
and attorneys, and on those persons in active concert or participation with them who receive
actual notice of the order by personal service or otherwise.
(D) Security.
(1) Before granting a preliminary injunction or temporary restraining order, the court
may require the applicant to give security, in the amount the court deems proper, for the payment
of costs and damages that may be incurred or suffered by a party who is found to have been
wrongfully enjoined or restrained.
(2) Security is not required of the state or of a Michigan county or municipal corporation
or its officer or agency acting in an official capacity. As to other parties, if security is not
required the order must state the reason.
(3) If the party enjoined deems the security insufficient and has had no prior opportunity
to be heard, the party may object to the sufficiency of the surety in the manner provided in MCR
3.604(E). The procedures provided in MCR 3.604(F) apply to the objection.
(4) When a bond is required before the issuance of an injunction or temporary restraining
order, the bond must be filed with the clerk before the sealing and delivery of the injunction or
restraining order.
(E) Stay of Action. An injunction or temporary restraining order may not be granted in one
action to stay proceedings in another action pending in another court if the relief requested could
be sought in the other pending action.
(F) Denial of Application. When an application for a preliminary injunction or temporary
restraining order is denied, but an order is not signed, an endorsement of the denial must be
made on the complaint or affidavit, and the complaint or affidavit filed.
(G) Later Application After Denial of Injunction.
(1) If a circuit judge has denied an application for an injunction or temporary restraining
order, in whole or in part, or has granted it conditionally or on terms, later application for the
same purpose and in relation to the same matter may not be made to another circuit judge.
(2) If an order is entered on an application in violation of subrule (G)(1), it is void and
must be revoked by the judge who entered it, on due proof of the facts. A person making the later
application contrary to this rule is subject to punishment for contempt.
(H) Motion for Injunction in Pending Actions. An injunction may also be granted before or in
connection with final judgment on a motion filed after an action is commenced.
(I) Application to Special Actions. This rule applies to a special statutory action for an
injunction only to the extent that it does not conflict with special procedures prescribed by the
statute or the rules governing the special action.　
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Notice that the standard for factual support for an ex parte order is different under the two rules. MCR 3.207 requires the court to be satisfied by specific facts ... that irreparable injury, loss, or damage will result. MCR 3.310 requires that it “clearly appears from specific facts ... that immediate and irreparable injury, loss, or damage will result.”
Many circuits have adopted local rules (which are published) and practices (which are not) that have material impact on the way to obtain ex parte custody orders, and on the terms the order must, may and may not contain. Counsel is well advised to obtain advice from an experienced practitioner in the court’s geographical area, or to at least contact the court clerks to obtain information prior to filing a request or preparing an order.
A motion and request for hearing to modify an ex parte order that is filed within 14 days after the ex parte order was served does not require a showing of good cause or a change of circumstances and, upon hearing, the order may be changed retroactively to the date of entry. MCR 3.207(B)(5) and (6). After the expiration of the 14 day period an ex parte order becomes a temporary order. A motion to modify a temporary order requires a showing of good cause. MCR 3.207(C)(3). This is clearly different than orders issued under MCR 3.310, which expire in 14 days, unless extended by consent or by the court for good cause shown.[c]
　
　
DOCUMENTS TO BE FILED
The following documents must be filed to obtain an ex parte order concerning minor children:
a verified complaint including allegations pertaining to the minor children (
a verified statement (SCAO form
any affidavits or certifications required by the county of filing (
a proposed ex parte order and, in some counties, an income withholding order (SCAO form
a Uniform Support Order (MCR 3.206(A)(3) requires the complaint, or an affidavit attached to the complaint, to state the information required by the Uniform Child Custody Jurisdiction and Enforcement Act (MCLA 722.1209). Under the statute the information must be given in a party’s first pleading or in an attached sworn statement and must be under oath. The information may be included in the complaint, but in that case the entire complaint must be verified under the requirements for oaths and affirmations. Including an allegation in the Complaint that describes the court’s jurisdictional basis under the UCCJEA is recommended.[c]
Simply put, your request (i.e., allegations in the Complaint and UCCJEA affidavit) should be accurate and complete. It should explain the current status quo, state a reason why the status quo is in jeopardy, and explain why the status quo should be protected by an immediate order. While there may be a true need for an immediate order, there is also a need to establish a tenor of fairness in your efforts to prevent harmful unilateral actions. Do not overreach by trying to establish a newstatus quo with the order that did not actually exist. You subject yourself to sanctions under MCR 2.114, as well as risk insulting and infuriating the judge, if you play fast and loose with the facts. Do not burn your reputation on one case[c]
　
　
EX PARTE COULD BECOME PERMANENT

The ex parte order must state that it automatically becomes a temporary order if the other party does not file and serve a written objection or motion to modify with a request for a hearing within 14 days after the order is served. If the other party makes a timely objection, a hearing must be held within 21 days of filing. A change at the hearing may be retroactive to the date the ex parte order was entered.
REQUIRED NOTICE
An ex parte order under
“NOTICE:
“1. You may file a written objection to the order or a motion to modify or rescind the order. You must file the written objection or motion with the clerk of the court within 14 days after you were served with this order. You must serve a true copy of the objection or motion on the friend of the court and the party who obtained the order.
“2. If you file a written objection, the friend of the court must try to resolve the dispute. If the friend of the court cannot resolve the dispute and if you wish to bring the matter before the court without the assistance of counsel, the friend of the court must provide you with form pleadings and written instructions and must schedule a hearing with the court.
“3. The ex parte order will automatically become a temporary order if you do not file a written objection or motion to modify or rescind the ex parte order and a request for a hearing. Even if an objection is filed, the ex parte order will remain in effect and must be obeyed unless changed by a later court order.”OTHER NOTICE
In all other cases, the ex parte order must state that it will automatically become a temporary order if the other party does not file a written objection or motion to modify or rescind the ex parte order and a request for a hearing.
FFRIEND OF THE COURT INVOLVEMENT
If there is a dispute regarding child custody or parenting time, the Friend of the Court must investigate and issue a recommendation when ordered to do so by the court.
COURT MUST SHOW PROPER CAUSE AND CHANGED CIRCUMSTANCE
If custody was established by court order, the court must find that proper cause has been shown or that there has been a change of circumstances before ordering an investigation.
OBECTION REQUIRED
An ex parte order becomes a temporary order if the opposing party does not object to it within 14 days.
[a]Michigan Family Law ch 6 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at
(last updated 04/29/2011)
[b]
CAPS Terry Bankert
[c]
http://www.attorneybankert.com When minor children are involved and the parties are separated, courts routinely grant ex parte relief. Ex parte orders are those orders one party obtains, usually at the time of filing the complaint, without the other party receiving notice and an opportunity to respond. MCR 3.207(B). MRPC 3.3(d). If the request for ex parte relief is denied and the court does not enter an order, an endorsement of the denial must be made on the complaint or affidavit, and that document must be filed. MCR 3.207(B)(7), .310(F). form 6.3. MCR 3.207 pertains to ex parte, temporary, and protective orders in domestic relations. The parent with custody often obtains an ex parte order for custody or possession and child support, which also usually includes a general provision for parenting time. The court may enter ex parte orders concerning the care, custody, and support of the parties’ minor children during the pendency of the case as the court considers proper and necessary. MCL 552.15(1). MCR 3.207 allows ex parte orders on proper pleading. form 6.1) FOC 23) forms 6.3 and 6.4, Wayne County) FOC 5) FOC 10, Uniform Child Support Order, when payments go through FOC or MiSDU; FOC 10a, Uniform Child Support Order, No Friend of Court Services, when payments go directly to the recipient)MCR 3.207(B)(6). An ex parte order for support must also contain the provisions required in all support orders, including information on the payer’s current source of income and any health insurance available. MCL 552.605a(1). The interest surcharge, see MCL 552.603a, does not apply to ex parte interim or temporary orders. MCL 552.603(3). MCR 3.207(B)(5) providing for child support, custody, or parenting time pursuant to MCL 722.27a must include the following notice: MCR 3.207(B)(6). An ex parte order is effective on entry and enforceable on service. MCR 3.207(B)(3). A true copy of the ex parte order must be served on the defendant by personal service and on the Friend of the Court if the case involves minor children. MCR 3.207(B)(2). After service is completed, an attorney must file proof of service with the court and, if applicable, the Friend of the Court. MCL 552.505(1)(g); MCR 3.208. MCL 552.505(1)(g). If either party requested an investigation into child custody or parenting time, the Friend of the Court may charge the parties for the expenses it incurs in such an investigation. MCL 552.505(3). The court is authorized to decrease or waive the fee because of indigency or inability to pay. It may also order that the fee be charged against only one party if it determines that the request that led to the investigation was frivolous. MCL 552.505(3). Each party to a dispute involving child custody, parenting time, or child support has a right to meet with the individual investigating the dispute before a recommendation is made. The informational pamphlet that the Friend of the Court gives the parties must contain a notice of this right. MCL 552.505(1)(c). If the party requesting the meeting fails to attend the scheduled meeting without good cause, the investigation may be completed without a meeting with that party. MCL 552.505(2). MCR 3.207(B)(5). Alternatively, a party may move for entry of a temporary order under MCR 3.207(C). A temporary order, such as one for child support, may be modified during the pendency of the divorce following a hearing and on a showing of good cause. MCR 3.207(C)(3). Although MCL 552.603 limits retroactive modification of any payments in a support order after their due dates, the statute expressly exempts temporary orders from the rule. See MCL 552.603(3). Arrearages (except Aid to Dependent Children) due under a temporary order are extinguished on entry of judgment unless specifically preserved. MCR 3.207(C)(6). http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=06

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