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.
DISCLAIMER
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.
Read More:
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
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