BY BETH BRATTON
The first hearing in any family law case is of critical importance because the court will enter a temporary order that starts the process of dividing property between the parties and determining visitation rights for children, as well as resolving any other issues that need to be addressed on a temporary basis. The real-life scenarios flowing from entry of temporary orders involve clients losing or gaining time with their children, being kicked out of their home, paying support to the spouse who just left them, being told which vehicle they get to drive and what property they can take from the family home, and sometimes being restrained from use of or contact with everything they had in their world.
It’s important for anyone wanting to practice family law to review Title 26 RCW. As even those who don’t practice family law will likely understand, the delicate part of family law is handling the raw emotions of a client who is likely going through one of the worst times of their life. When I started practicing family law, I quickly discovered how emotional my clients were and how non-emotional the system was. This is what makes the first meeting with the client critical: You must help the client understand how the law applies to their case and how the process works. And as counsel, you need to quickly ascertain and prioritize the issues you can help with, especially if there are immediate needs to be addressed. During the initial family law consultation, I like to explain the law applicable to the person’s case and how the legal process works. It helps to break down the categories to be addressed, such as dividing assets and debts, figuring out a parenting plan, establishing child support, and spousal support. How you start the process in a family law case really depends on the facts and where your client wants the case to go.
One particularly stressful aspect for clients is wading through the tremendous amount of paperwork they must fill out just to get to their first court appearance and obtain a temporary order. To file a motion for temporary orders, the client may have to fill out a raft of documents including the motion itself (motion for temporary orders or ex parte motion for temporary orders); a declaration in support of the motion; a proposed parenting plan; information on temporary parenting plan; proposed child support worksheets; proposed child support order; and a financial declaration. They may also need to obtain declarations from friends, coworkers, family, teachers, etc. It may feel like you are handing out a homework assignment as you tell your client to just do their best and fill out as much as they can, because the reality is that it usually takes a couple of rounds of your client’s efforts and your review before these documents are final and ready for filing with the court.
In a family law case, you can proceed to your first hearing with a standard motion for temporary orders or by filing an ex parte motion that requests a restraining order. Both motions can seek the same remedy—obtaining a court order addressing issues in the case on a temporary basis. A motion for temporary orders is a “soft” filing where the other party will be served with all of the supporting documents for the motion, a court date will be set, and the other party will have an opportunity to respond to the motion before a judge makes any type of ruling. The statutes that guide the motion for temporary orders are RCW 26.09.060, 26.09.110, 26.09.120, and 26.09.194. This type of motion is a fair playing field because both sides can adequately present their case, or seek to move the hearing so they can effectively present all their evidence, before a ruling is entered by the court.
Then there’s a bomb that often gets dropped in family law: One of the parties files an ex parte motion for temporary orders seeking an ex parte order that contains restraint provisions. In this scenario, a temporary order may be entered before the other party receives notice or can present any evidence to the court. See RCW 26.09.060; Ch. 26.50 RCW; CR 65(b). This situation is tough for any party because they now have a court date set within the next 14 days, and a signed order that can restrict them from going home, seeing their children, or even accessing specific bank accounts.
The party requesting an ex parte restraining order must attest to the following: “I ask the court to approve an Immediate Restraining Order to protect me and/or my children. Without this Order, my children or I could be hurt or suffer damage or loss immediately. This harm could be irreparable.” The moving party also must explain: “I should not have to notify the other side in advance that I am filing this Motion because my children or I could be harmed beyond repair if I gave any advance notice.”
The facts surrounding these types of ex parte orders usually involve emotional and/or physical violence in the home, substance use disorders, financial issues, or withholding a child. The nature of the abuse can be directed toward the party requesting the restraining order, the children, or all of them. If the court agrees that there is the potential for irreparable harm and signs the ex parte order, the opposing party will immediately be served with a court order with restrictions.
This can be a very challenging situation because in most cases the person served with the ex parte order can’t do much to contest it unless they can get an emergency hearing before the scheduled court date. An emergency hearing may be warranted if the restraining order completely cuts off visitation with the children or restricts use of property or bank accounts. Regardless, the person receiving the restraining order needs to start preparing their response by reading every document that was filed (and there are usually quite a few). One of the key pieces of evidence for the court will be the responsive declaration filed by the client who is the subject of the allegations in the ex parte motion. I encourage clients to address every allegation that is not true. This can be done by submitting a declaration refuting the allegations or obtaining a supportive declaration from someone who has firsthand knowledge of the issue. A common issue in family law is keeping out hearsay. Parties tend to include a lot of statements in their declarations that are hearsay. Counsel should object to all hearsay statements and ask the court to strike them and not consider them in ruling on the motion.
In cases involving parenting plans, I strongly encourage clients to obtain supportive declarations from coaches, daycare providers, doctors, etc., who can independently demonstrate the level of involvement each parent has with the child(ren). You may also consider filing the child’s pediatrician records, dental records, counseling records, and report cards. These are independent references for the court that can shed light on the children’s well-being and each parent’s involvement. In addition, a party may consider having a guardian ad litem appointed who can investigate all issues related to a parenting plan.
If there are financial allegations, the client should consider filing a declaration from a CPA, bank statements, credit card statements, and/or business records. The court will appreciate a summary of the financials and why they were filed so the court is not left sifting through thousands of pages and trying to figure out how these documents are relevant.
The important thing to remember when preparing for the first hearing is to ensure that you file all documents that are relevant to the issues raised in the ex parte motion for temporary orders. It is not uncommon to get to the first hearing and have the client bring up new issues or seek to provide additional information; if those things were not included in the actual motion being heard they won’t be addressed, and a new court hearing will need to be set to address them.
Once the client has prepared their response to the ex parte motion, they will file their responsive pleadings and serve the other side with their response and any independent evidence to disprove the allegations against them. The person who received the restraining order gets only one chance to respond; in most counties, the person who filed the ex parte motion for temporary orders gets to submit a reply to the responsive pleadings.
At the initial hearing for temporary orders, the court will have reviewed the pleadings and will hear argument from both sides. The court’s ruling will result in entry of a temporary order that will remain in place until final orders are entered, unless during the pendency of the case there is a substantial change of circumstances that warrants a change to the temporary orders or the court sets a review hearing. In most cases, it is difficult to revise the temporary orders, and the objecting client does not get to relitigate the issues decided in the temporary orders unless the case goes to trial. The groundwork done before the initial hearing is critical because the temporary orders set the tone for what the final orders may look like once the case is finalized.