Is an ex parte order fair when one party cant show up?

Answer 1

It can seem unfair, but it is actually fair, if you know the whole situation.

1. An ex parte order is granted only after the plaintiff demonstrates to the judge's satisfaction that there may at least be some reason for it. Determing whether the plaintiff was telling the truth will come later.

2. The order is only temporarily granted, until a hearing that is usually set within two weeks of the order. At the hearing, the respondent will have opportunity to contest.

3. The respondent is given the plaintiff's allegations, so that the respondent has time to prepare a defense.

4. The respondent may - though many don't know this - get a modification of the order during the temporary period, if the respondent can show a judge that it places some undue hardship on him/her. (For example, if a Protective Order restrains you from your house, but you work in the home, you could - with judicial permission - go and retrieve your files.)

5. The respondent may - though many don't know this - file motions for subpoenas and depositions that the plaintiff must comply with, so that he/she can adequately defend against the claim.

6. Then, there is that hearing, in which the respondent has opportunity to cross examine the plaintiff - but so long as the respondent submits no testimony, cannot be cross examined back. Further, the judge, recognizing that such hearings usually have no attorneys present, will explain this. The respondent also has opportunity to call witnesses in his/her defense, as does the plaintiff.

7. Only after all that will the judge make a determination. And either way it goes, ex parte is only done in Protective Order cases, and those are civil, not criminal. After the judge makes the determination, either party may appeal, though not in an unlimited fashion. Either party may also make various motions to modify, again showing some undue burden.