PMA International has recently received several emails from Protective Moms ( P.M’s) having questions about contacting the judge in their custody case. They also have questions about friends or relatives contacting the judge on their behalf to advocate and/ or be a character witness for them. Protective Moms feel that this might be a positive way for the judge to directly hear their point of view and advocate for their case. Also, if the moms do not have an attorney they are not quite sure of proper procedure in regards to communicating with the judge.
In light of these questions PMA International is responding with the below information.
IMPORTANT: PMA INTL DOES NOT GIVE LEGAL ADVICE. The information on this website/blog is not intended to serve as legal advice or as a guarantee, warranty or prediction regarding the outcome of any particular legal matter. If you have a legal problem, seek professional legal counsel.
Questions About Ex Parte Communication
1.What is “ex parte communication”?
Ex parte communication is when one party directly contacts a judge, or has someone else (a “third party”) contact a judge on their behalf to speak about the issues of the case, ask for changes, share information or otherwise discuss an ongoing case. Ex parte communication includes the actions of one party, an attorney acting for a client, or a “third party” such as friends, family members, professional organizations and others acting on behalf of one party.
Ex parte communication is considered to be one sided because the other party involved in the case has no knowledge of the contact being made, and is not privy to the information being shared. Ex parte communication includes: e-mail, fax messages, text messages, social media exchanges, written letters, phone calls, voice mails and petitions made directly to the Judge on the behalf of one party.
2. Why Can’t I Talk or Write to my Family Court Judge? Why Can’t I have Other People Contact my Family Court Judge for me?
Generally, ex parte communications are not allowed. Under the Judicial Code of Conduct, a Family Court Judge cannot allow or consider “ex parte communication” when making a decision on a case, unless allowed by the law.
Think about it: would you want the other party contacting the Judge without your knowledge or consent and having a discussion about important issues in your case and you are not allowed to be present or give your side of the story? Probably not.
3.Why is ex parte communication not allowed?
Ex parte or “one sided” communication to a judge is not allowed in order to preserve the law, and maintain neutrality in the courts. The ban on ex part communication ensures that the Judge makes a ruling based only on the facts and evidence in the case. It also helps to ensure fairness in the courts, because all parties are given the same information as the Judge who is presiding over the case. If a party disagrees with the information, they can contest it in court. Ex parte communication protects litigants by ensuring information is shared in open court, not in secret or closed-door meetings.
The California Court of Appeal is clear on this issue: “Unless expressly authorized by law, ex parte contacts between the court and counsel are always ill-advised and violate the State Bar Rules of Professional Conduct when such contacts deal with the merits of a pending, contested matter. (Citation to predecessor to Rule 5-300.) Moreover, unauthorized ex parte contacts of whatever nature erode public confidence in the administration of justice, the very cement by which the system holds together.” In re Jonathan S. (1979) 88 Cal.App.3d 468. (Source: SDBCA Legal Ethics Opinion 2013-2)
An attorney who attempts ex parte communication, and speaks to a Judge about issues related to an ongoing court case may face disciplinary action. A party who attempts ex part communication will usually be given a warning it is not allowed, if they persist in attempting contact with a Judge, they may face punitive action. A Judge who engages in ex parte communication could also face disciplinary action.
4 Is Ex Parte Communication Ever Allowed?
In certain cases the law allows for certain types of ex parte communication.
“Why do I dread considering ex parte custody motions? Because I know that I am being asked to make an important, high-risk, decision without complete – and occasionally with false – information. I do not have the other side’s story and I have only an affidavit or verified motion from the Movant, which cannot be cross-examined. On top of all of this, time is usually short…While we may dislike these difficult situations, we will continue to face them because emergency custody orders can be an important tool in protecting children ” Judge Martin B. “Marty” McGee, 2011: http://familylaw.ncbar.org/newsletters/familyforumoct2011/exparte One Judge’s View Of Ex Parte Custody Order
Note; PMA International is very aware of the MISUSE of exparte orders by corrupt family court. Many protective mothers have reported to us, and some PMA International leaders, have lost custody due to bogus corrupt exparte orders.
Communication about scheduling or case status is allowed (you will usually speak to a court clerk). In emergency situations the Judge can proceed with a hearing without the other party being present or issue temporary orders. This commonly happens when a Judge issues an Order for Protection or Harassment Restraining Order to protect a victim of domestic violence or stalking. Other types of emergency ex parte hearings are allowed to protect a child from imminent physical injury, sexual abuse or abduction. Following an ex parte order, a hearing is later scheduled to allow both parties to discuss the issue in open court.
Please check your state’s statues for specifics on ex parte communication, and how the law works.
5.How do I get the Judge to Hear What I Have to Say?
If you want the Judge to hear your argument or review evidence, you must follow the laws in your state governing family court procedure. In most cases, this means filing a motion and serving the other party with a copy of your motion. A hearing before a Judge is then scheduled.
In many states, the person filing the motion must attempt to resolve the issue outside of court (mediation) before filing the motion; so be sure you have met the court’s requirements when filing. If you need help with a legal matter, please contact a legal professional. Many courts also offer legal clinics to assist with basic legal questions and give instructions on how to properly file a motion.
2014 California Rules of Conduct, Rule 5.235. Ex parte communication in child custody proceedings: http://www.courts.ca.gov/cms/rules/index.cfm?title=five&linkid=rule5_235
Hawai’i State Judiciary, “Why Can’t I Write or Talk to the Judge?”: http://www.courts.state.hi.us/self-help/exparte/ex_parte_contact.html
Family Law Section, North Carolina Bar Association, “One Judge’s Views of Ex Parte Custody Orders” by Judge Martin B. “Marty” McGee: http://familylaw.ncbar.org/newsletters/familyforumoct2011/exparte
SDBCA Legal Ethics Opinion 2013-2, Adopted by the San Diego County Bar Legal Ethics Committee April 16, 2013 (Ex parte communications between attorneys and judges): https://www.sdcba.org/index.cfm?pg=Ethics-Opinion-2013-2