Jones v. Jones

¶1concurring. I concur in the result reached in this case. While I agree that the ex parte order was subsumed by the final order and is not itself vulnerable, I do wish to comment on the problems inherent with ex parte orders.

¶2When there is imminent danger of harm to the child, there is a place in our jurisprudence for issuance, without notice, of emergency ex parte relief of short duration. Such emergencies would generally be the same as those constituting dependency, but for the availability of a fit parent to assume custody.1 Courts should not change custody on an ex parte basis in the absence of a showing that, unless ex parte modification is ordered, the child is subject to immediate harm.

¶3Application for an ex parte order should be accompanied by affidavits setting forth detailed facts supporting the need for such relief. When possible, affidavits from physicians or mental health professionals explaining the need for an immediate change should be obtained. It is very important for the attorney to allege specific facts warranting emergency jurisdiction. Moreover, “[u]nless imperative, the court should not rely on ex parte statements for proof of the existence of an emergency.” Wolfberg v. Noland, 222 P.2d 426, 427 (Colo. 1950).

¶4Ex parte communications deprive the absent party of the right to respond and be heard, suggest bias or partiality on the part of the judge, can be misleading, and, at the very least, expose the judge to one-sided argumentation, which carries with it the attendant risk of an erroneous ruling. At worst, ex parte communications are an invitation to improper influence. Therefore, I also believe that such orders should not issue unless a showing is made that it is impractical to serve or otherwise notify, even informally, the opposing party or his or her attorney so that that party can participate.