Mason Law - Restraining Order Details

These “no notice” restraining orders are called “ex parte” orders, because you get to go to the court without the normal two-week notice to the other party, and without the other side having a chance to tell their side of the story before the emergency order is issued by the court.

These emergency orders serve an important function to keep parties apart during the initial, heated, days or weeks of a dissolution, preventing harm and preventing contact with the criminal justice system.

Unfortunately, while these orders serve an important function, some attorneys regularly use the ex parte process to grab the kids, the house or other important property without proper notice and opportunity to be heard to the other party.

Real “notice and opportunity to be heard,” means that you have time to read what the other side is alleging, and time to develop your facts opposing the motion. A phone call from the ex parte court room right as the orders are about to be signed is not substantial notice, and it is essentially zero opportunity to "be heard" as you could not think and write a response in such a short time-frame.

No matter how disreputable the abuse of ex parte orders is, it is a fact of life that the courts issue the ex parte orders "to play it safe," and the courts do not sanction the attorneys who abuse the ex parte process; thus some unethical attorneys will abuse ex parte orders to begin legal actions. This means that you need to have an attorney who can get you ready for hearing as soon as possible, even if it means late nights for you and your attorney. Only hard work can reverse this dirty "first strike."

You have a right to set a motion to “quash” any no-notice order on two-days’ notice, or even more quickly if the court thinks less than two-days’ notice is justified. If you and your attorney can work fast enough, you can get to court before the hearing date set on the front pages of the ex parte order.

However, an “ex parte” order is not good for more than two weeks (14 days maximum), and usually by the time you are served with an ex parte order, it is a week or ten days until your hearing that is will be occurring “with notice.” I repeat: that notice of the full hearing is served with your restraining order on the first or second page of the order.

Sometimes, it is best to simply pour your time into getting ready for that hearing.

Often I see that clients come to me after the hearing noted by ex parte order, and they were so busy responding to false allegations of abuse (filed so that the other spouse could grab the home and the children), and they were so desperate to rebut those allegations so that they could see the children, that they did not notice that the hearing was also about “temporary orders” in terms of who gets to use the house, gets which car, and who controls which bank accounts until the trial. So, by the time the client comes to me, he or she is in a deep hole. We can work our way out, but it takes a frustrating amount of time, patience, and diligence.

If someone has “played dirty” by getting an unjustified ex parte restraining order to start the divorce, you better get moving fast, or the dirty trick of starting a divorce this way can affect you (and your children) for the rest of your lives. The effectiveness of this unethical trick, and the failure of the courts to sanction it, is why it continues to be a terrible peril in any divorce. Be ready to compile your facts as quickly as you can. With hard work, and good counsel, you can fight your way back to a fair result.

There are three types of restraining orders that can typically occur in a family law action: Anti-harassment (RCW 10.14), Domestic Violence (RCW 26.50); or restraints issued under the dissolution (RCW 26.09).

An RCW 10.14 anti-harassment order might be used against a partner of an ex-spouse who is not under the jurisdiction of your dissolution. (Your dissolution only applies to you, your ex, and your children.) The key categories of facts for an anti-harassment order are the following:

If you can show these facts, then you can get a court order restraining the person from this “course of conduct.”

Deliberate violation of an RCW 10.14 Anti-Harassment Order is a gross misdemeanor. (RCW 10.14.170)

A Domestic Violence Restraining Order under RCW 26.50 applies to intimate partners, former intimate partners, children, etc. The “domestic” idea is one of violence by someone who is, or was, an intimate person in your life.

The statutory definition under RCW 26.50.010 is pretty self-explanatory:

Comparing RCW 26.50 and RCW 10.14: In the RCW 26.50 definition, above, there is no requirement that the “fear” be reasonable. RCW 10.14 requires that the distress be what would distress a reasonable person, and that it did distress the person asking for the order in particular. RCW 26.50 has no such requirement. (Violating the DV order is also a criminal act.)

The policy behind RCW 26.50 was very well-meaning, as domestic violence was, and remains, a very real problem in our society. However, as the ex parte order provision (RCW 26.50.070) requires little more than an allegation of domestic violence, and, as there are no real sanctions for making false claims, unscrupulous attorneys start divorces with false allegations of domestic violence. It requires a rapid response to push back these false allegations so that the children “grabbed” by the parent making the false allegations, in the ex parte order, can be restored to shared parenting. You and your attorney need to assimilate the facts, photos, statements from witnesses, counseling and school records, etc. to prevent this disreputable ploy from working.

At times, some attorneys get such a bad reputation for filing unfounded RCW 26.50 ex parte orders to start cases, that to avoid the court denying the order as having been requested for “strategic reasons,” the attorneys have their clients file “pro se” (unrepresented) ex parte motions, and then they get the ex parte DV restraining order to grab the children for the two weeks before the first hearing, and then the lawyer will “emerge” from behind the scene to join the divorce already under way, or the lawyer will appear on the scene to file the divorce if the DV restraints were filed as a separate action.

Of course, there are legitimate claims of domestic violence, and the ex parte orders are crucial both to protect the victim and to keep the parties apart while everyone calms down, and a “moment,” in which violence might have happened if the parties had not been separated, passes, without grievous losses from domestic violence that could have been prevented.

Craig Mason about his experiences:

My personal sample is not representative, as people bring problem cases to me, and I have filed DV restraints against others, and I have defended against them. My more usual role is defending against them, as I do not file false DV petitions, so I do not have to try to defend a false one, but I do defend people from false allegations of DV. Unfortunately, in my un-representative sample, only around 10% of the DV restraints I defend against turn out to have any basis in fact. Instead, the abuse of the DV restraints have been strategic, tactical, and made in bad faith by the opposing counsel.

Finally, restraints in the dissolution case are restraining orders that issue under the dissolution statute (RCW 26.09) can range very widely, from being essentially a DV order, to simply limiting or defining how former partners and spouses communicate. Some of these provisions can also be criminally enforced, and the orders can also issue ex parte, on an allegation of irreparable harm, and they are subject to the same abuse as RCW 10.14 and 26.50 ex parte orders. Once again, they can serve a very important purpose, or they can be abused to get possession of the children, or a home, or bank accounts.

Conclusion: The ex parte orders will continue to issue promiscuously from the courts, as the judges and commissioners prefer to “play it safe” rather than to deny an ex parte order and have someone get hurt. The harm of the improper ex parte order falls on the victim of the ex parte order, and not overtly on the court, and so this systemic bias of the courts toward issuing ex parte restraining order should be expected to continue. Railing against the unfairness of it all is useless; instead, you must work with your attorney to quickly accumulate the documents and sworn statements that will rebut the allegations made by the other party in his or her request for ex parte restraints. Evidence is the only way the court can get to the truth. “Truth in general” is not available to the court; only evidence, not truth, is available to the court. Busy court commissioners will be reading your documents, trying to figure out who is lying and who is not, and what is in the best interests of any children, and/or what is most fair for the parties. The facts need to be presented quickly and clearly and on terms that meet the elements of the statutes being applied by the court. What you “want to say” can get in the way of stating what the “court needs to hear.”

Ex parte orders are a powerful tool to prevent irreparable harm from hot-headed parties, but, more often, they are used as an illegitimate “first strike” in a court action. Mason Law has years of experience in getting ex parte orders when appropriate, and in fighting this dirty trick when inappropriate orders have issued..