What are Ex Parte Communications?

The Latin phrase “ex parte” literally translates to “on or from one side or party only” and you often hear the term associated in North Carolina Family Law cases. Ex parte communications are generally those which occur between one party to a lawsuit with the Court in the absence of the other party. Where an attorney has made an appearance in the action with the Court, he or she stands in for the actual litigant regarding all communications with the Court.

In most instances, ex parte communications are prohibited. The reasoning against allowing one party to communicate with the Court without the other present is rather simple: In an adversarial system where every party has a right to state their own case, it would be unfair to allow a one-sided communication without providing the other party their right to defend themselves. To assure such a one-sided situation never arises, the rule against ex parte communications is strict. All verbal in-person or telephone communications with the Court must occur with both parties present and any written communications by one party to the Court must also be provided to the opposing party.

In North Carolina Family Law, there certain circumstances in which ex parte communications are allowed: When there exists an emergency situation in which there is not time to properly notice the other party.

If there is risk of immediate harm to a minor child, one party may communicate directly with the Court without the other party (or his or her attorney) present through the process of an Ex Parte Motion for Emergency Custody to try and avoid the possible harm to the child. If there is risk or immediate financial harm, one party may also communicate ex parte with the Court. For example, if a marital asset is subject to immediate foreclosure, one party may communicate directly with the Court without the other party (or his or her attorney) present via a Temporary Restraining Order to avoid the loss of that asset. In either of these situations, while the Court allows limited ex parte communications, the other party must be provided notice as soon as possible and there is often an expedited hearing for the other party to present his or her defense to the Court.

Except for very distinct scenarios, the best course of practice is to include your opposing party in any communications with the Court. Doing so will ensure your compliance with the law, maintain an appearance of fairness in your case, and negate any allegations of impropriety.

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