Revised Local Rule 39

EX‑PARTE ORDERS ‑ DOMESTIC MATTERS

39. (A)

In addition to and supplementary to Rule 75 (2) of the Ohio Rules of Procedure, the following Rule shall apply to all domestic relation cases on the docket of the Common Pleas Court of Crawford County, Ohio:

(1.) When it is necessary, to prevent physical abuse, annoyance or bodily injury, to have a party excluded from the family home, and it further appears that the party excluded will not be unduly inconvenienced, the Court may allow a temporary restraining order with or without bond to exclude such person and the same may be issued without notice.

No temporary restraining order shall be issued under this paragraph which excludes a primary caretaker of the minor children from a marital residence or awards custody of the minor children to someone other than the primary caretaker, unless the opposing party establishes by sufficient proof that an emergency detrimental to the minor children would be presented by awarding temporary custody to the primary caretaker.

The primary caretaker is defined as the party who has spent the majority of time with the child or children in the six months prior to the temporary order.

(2.) Any attorney seeking an ex-parte order shall file, at the time of seeking the order, an affidavit stating that either the adverse party is unrepresented by counsel to the best of the affiant’s knowledge OR that the opposing party is represented by counsel, naming said counsel and the specific reasons why this order should be issued without notice to said counsel.

(3.) When an ex‑parte order is issued against a party who claims it was wrongfully issued or should be modified, such aggrieved party shall file a motion in writing and be entitled to a hearing upon notice to the opposing party within four (4) days, exclusive of weekends, of the issuance of the ex‑parte order. If on initial hearing, the Court determines extensive evidence will be required to settle such motion, the same may be continued or referred to a magistrate for hearing with final determination on or before thirty (30) days from and after the initial hearing. An emergency hearing is defined as a hearing involving custody of minor children. All other matters shall be considered under the normal rules of motion practice.

(4.) The reason and spirit of this Rule is to avoid inequities that have arising in the past and to require more stringent proof by affidavit or otherwise regarding ex‑parte orders. The further reason and spirit of this Rule is to avoid frivolous ex‑parte orders and to avoid the issuance of orders without notice to a party or counsel except in such cases where proceeding without notice is the only course of action. Parties procuring frivolous ex‑parte orders or violating the reason and spirit of this Rule shall be required to pay the costs and expenses, including attorney fees of the opposing party inconvenienced and may be dealt with otherwise in contempt. (Revised April 15, 1992)

(5.) The above sections of Rule 39 deal mainly with custodial and abusive matters. It does not apply to persons requesting injunctive relief to preserve marital property and assets. Needless to say, if a party had notice of an injunction being sought, they could dispose of the property before the entry was signed.

(Effective November 3, 1994)