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Rule 303.04 – Ex parte and Emergency Relief

May 13, 2021 | Family Law, Minnesota

(a) Governing Rules. The court may grant emergency relief if the requirements in this Rule 303.04 are met. If emergency relief is sought ex parte, the party seeking the relief must demonstrate compliance with Rule 3 of these rules.
(b) Order to Show Cause. An order to show cause shall not be used except in those cases where permitted pursuant to Minn. Gen. R. Prac. 303.05.
(c) Requirement of Motion; Form. The party seeking emergency relief must state with specificity in a motion and affidavit:

(i) Why emergency relief is required;
(ii) The relief requested;
(iii) Disclosure of any other attempts to obtain the same or similar relief and the result;
(iv) If there was a prior attempt to obtain emergency relief, the name of the judicial officer to whom the request was made;
(v) If a prior request was denied for the same or similar relief, explain what new facts are presented to support the current motion.
(d) Proposed Order. The party seeking emergency relief must present a proposed order for the court’s consideration.
(e) Notice. The party seeking emergency relief must serve the motion and affidavit, including notice of the time when and the place where the motion will be heard, on the other party or counsel, unless:

(i) the party seeking emergency relief provides a written statement that the party has made a good faith effort to contact the other party or counsel and has been unsuccessful; or
(ii) the supporting documents show good cause why notice to the other party should not be required and the court waives the notice requirement.
(f) Hearing. An order granting emergency relief without notice shall include a return hearing date before the judicial officer hearing the matter. If the relief obtained affects custody or parenting time, the court shall set the matter for hearing within 14 days of the date the emergency relief is granted.

Minn. Gen. R. Prac. 303.04

Amended effective May 1, 2012.

Family Court Rules Advisory Committee Commentary*

Minn. R. Civ. P. 65.01 states the notice requirements for ex parte relief. Minnesota Statutes, section 518.131 controls ex parte temporary restraining orders.

*Original Advisory Committee Comment-Not kept current.

Task Force Comment-1991 Adoption

Subdivisions (a), (b) and (c) of this rule are derived from existing Rule 2.05 of the Rules of Family Court Procedure.

Subdivision (d) of this rule is derived from Second District Local Rule 2.051.

Parties should be aware that Minn. Gen. R. Prac. 3 applies to all ex parte orders, including those relating to family court proceedings. Minn. R. Civ. P. 65.01 also applies in family court temporary restraining order practice.

Advisory Committee Comment-2012 Amendments

Rule 303.04 is amended to make clearer the circumstances that justify seeking either emergency or ex parte relief. “Emergency” and “ex parte” are not synonymous, though sometimes both might be justified in a particular situation. Emergency relief may be appropriate where there is urgency, not caused by lack of diligence on the part of the moving party, that makes the normal deadlines in the rules unworkable. Even where exigent circumstances justify shortening the deadlines, they do not generally excuse the giving of notice-or the attempt thereof-to the other side. Rare situations may, however, permit or even demand that notice not be given to the other side before seeking relief from the court. Where destruction of property or evidence is threatened, assets appear to be concealed or are threatened to be concealed, or the abduction of children has occurred or is threatened, or other situations exist where the giving of notice is likely to make any relief impossible to obtain, the court may consider the matter ex parte (without notice to the other side). Rule 3 of these rules provides clear guidelines on seeking ex parte relief. The standards of Rule 65.01 of the Minnesota Rules of Civil Procedure also provide guidance for relief in family law manners. See Minn. R. Civ. P. 65.01 (permitting relief without notice if “immediate and irreparable injury, loss, or damage will result.”).

As is true for temporary restraining orders, any order granted without notice to all parties should be of extremely short duration and the court should hold a hearing upon notice to all parties before continuing or extending the relief. The availability of temporary relief, and the limits on that relief, are set forth in Minn. Stat. ยง 518.131.

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