Difference Between Ex Parte & Protective Orders

By AnnaMarie Aura

There are many reasons for obtaining Ex Parte and protective orders. Some common reasons are divorce, custody disagreements and suspicion of abuse. Ex Parte is removal of the child, or vulnerable person, from the current environment. A protective order, by definition, is a formal order taking place after the Ex Parte to continue the action and to prevent the person who is a threat or danger to the alleged victim from having contact with the victim.

Ex Parte Orders

Ex Parte Orders are temporary orders for shelter and protection against someone who is a danger to the child or vulnerable person. This happens frequently in divorce and custody cases. One parent alleges a danger to the child from being with the other parent and seeks the removal of the child from that parent. This is not permanent and usually requires an emergency hearing. An order of this type is usually obtained at the courthouse, family court division or juvenile division. There are instances where police have the ability (especially when someone is the victim of a crime) to fill out and file the paperwork; lawyers also have the ability to file. An emergency hearing takes place without either party present and after the evidence and paperwork have been submitted to the clerk. At the hearing, the judge signs or denies the Order of Protection. A hearing is then scheduled, usually for within 24 hours (if possible) to a week. The main differences between the Ex Parte and protection order is that the Ex Parte is an immediate emergency action that temporarily removes the child from a person and situation that poses a threat.

Service and Execution of the Ex Parte

The parent who is removing the child does not personally serve the other party who is the alleged danger to the child or vulnerable person. This is usually done by the sheriff's department, or in some cases, a police officer. The police then remove the affected person from the custody of the suspected dangerous party and turns custody over to the person filing, who is normally waiting nearby.

Order For Protection

An Order for Protection cannot be supported unless a person can demonstrate a real threat, endangerment, abuse or desire to harm. This order is based on evidence that is "beyond a reasonable doubt." This means that the person filing the order for protection has the burden of proof in court, and the other party has the right to a proper defense at the hearing. Usually an Ex Parte has been obtained prior to the Order for Protection hearing, and a hearing following the execution of that order is scheduled during the emergency hearing. If Ex Parte was not obtained, the person filing for this type of action needs to provide documentation, affidavits and specific examples of a threat and be prepared to defend the position against the other party under strict scrutiny. The filing of this paperwork is done at the family or juvenile court. A hearing is scheduled, at which both the person filing the paperwork and the defendant need to be present, or the judge can dismiss the case or find in favor of the person who was present. An Order for Protection is a long-term protective order that specifies contact limitations, rules and consequences. It must be renewed after the year has terminated. Two-, three- and five-year protection orders are not unheard of in certain situations.

Execution of the Order for Protection

If the judge finds in favor of the petitioner, the person filing the Ex Parte and/or Order for Protection, she will sign the order, and it will be delivered to each of the parties before they leave the court. The Order is generally good for a year and must be renewed via another motion and hearing. Sometimes, in cases where violence has been known and documented in the court, the judge will automatically schedule a hearing one year from the date of the Order. The Order will include specific information about the other party's ability to contact, distance he must remain from persons, property and locations listed, and consequences for violation.

Law Enforcement Role

Law enforcement officials can assist with completing the paperwork when a crime has been committed and a complaint filed with their departments. They can not make the order; it still needs to go through the court system. Legal professionals who are handling a divorce, custody or counter-action regarding a vulnerable person sometimes take the information and proof from the party and file it on behalf of the person requesting the relief. It must still go through the judicial system, as if the person went to the court themselves to file.

About the Author

AnnaMarie Aura began writing in 1988, and her work now appears on eHow and Answerbag. She is pursuing a Bachelor of Science in community psychology with minors in child psychology and gerontology from St. Cloud State University.

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