4.8 Ex Parte Custody

Article 3945 of the Code of Civil Procedure sets out the procedures required for an ex parte grant of custody. A party is not entitled to an ex parte order of temporary custody unless it is established from specific facts shown in a verified pleading or by a supporting affidavit that immediate and irreparable injury will result to a child or children before the adverse party or the party’s counsel can be heard in opposition. The applicant’s attorney must certify in writing either that efforts have been made to give the adverse party reasonable notice of the date and time the ex parte order is to be presented to the court or the reasons supporting the applicant’s claim that notice should not be required.

These ex parte orders expire automatically within 30 days of the signing of the order, but they can be extended for good cause shown for one period not to exceed 15 days. Further, the ex parte order must provide specific provisions for temporary visitation to the adverse party for not less than 48 hours during a 15-day period unless the verified petition or supporting affidavit clearly exhibits that the child would suffer immediate and irreparable harm should such visitation be ordered.

The order shall be endorsed with the date on which the ex parte order is signed and the date and hour that the rule to show cause is set. The rule hearing cannot be set more than 30 days after the signing of the ex parte order of temporary custody. Most importantly, failure to adhere to the provisions of Article 3945 makes the ex parte order unenforceable.

If the ex parte order of temporary custody is denied, La. C.C.P. art. 3945(F) requires the court to allocate the child’s time between the parents unless irreparable and immediate injury would result to the child.

Article 3945 does not apply to custody orders requested in a verified petition under the Domestic Abuse Assistance Act1  or the Post-Separation Family Violence Relief Act.2

A word of warning: always be absolutely truthful and candid to the court, particularly when requesting ex parte relief. Always provide the notice, necessary affidavits, and any other documents that support “irreparable injury”.

Do not rely on your client’s version of the facts or their certification of the petition. Here, as an officer of the court, you are required to search diligently for the truth – to the extent possible. Strictly comply with the law when seeking ex parte relief. If an opposing party filed or obtained an La. C.C.P. art. 3945 ex parte custody order without merit, you can use the order as an example of malice and proof that the adverse party is unlikely to facilitate a joint custody relationship.3

• 1La. R.S. 46:2131, et seq.; La. Ch.C. art. 1564, et seq.
• 2La. R.S. 9:361, et seq.
• 3See C.C. art. 134(12). For additional discussion, see Section 4.5.