Advisory opinion issued about ex parte petitions for temporary custody

April 23, 2015

The Indiana Commission on Judicial Qualifications has issued an advisory opinion to judges in response to numerous ethical complaints about judges granting ex parte petitions for temporary custody in non-emergency cases or when there was no attempt to provide notice to the adverse party.

The advisory opinion, #1-15, reiterates the appropriate judicial response to a petition for temporary custody order filed without an attempt to notify the adverse party, as outlined in Opinion #1-01. Thursday’s opinion is to “again impress upon Indiana judicial officers the importance of abiding by the attempted notice and proof requirements contained within Trial Rule 65(B). Judges should also consider their ethical responsibility with regard to attorneys who file facially deficient ex parte petitions for temporary guardianship.”

The opinion outlines several examples of when judges granted an ex parte petition, but shouldn’t have, such as violating a custody order, the acting guardian’s inability to obtain health insurance for a child without a guardianship order or the inability of a guardian to enroll a child in school.

“Judges are afforded great discretion in the content of their rulings, and legal error alone is not generally grounds for ethical discipline. But when procedures exist to protect parties’ due process rights, these procedures must be followed. Judges who fail to follow Trial Rule 65(B)’s procedures when granting ex parte petitions for temporary guardianship may run afoul of Rule 2.9 of the Code of Judicial Conduct, which prohibits improper ex parte communications; Rule 2.6, which requires judges to accord the right to be heard to each person who has a legal interest in a proceeding; Rule 1.1, which requires judges to comply with the law; and Rule 1.2, which requires judges to act at all times in a manner which promotes public confidence in the judiciary,” the opinion states.

“To comply with the requirements of Trial Rule 65(B) and the Code of Judicial Conduct, judges who receive ex parte petitions for temporary guardianship must evaluate the petitions carefully, ensuring that the petition contains sufficient facts and proof of attempted notice (or a sufficient explanation of why notice should not be required) and including those facts in a written order if the petition is granted. Petitions that allege circumstances not rising to the level of emergency required to deprive parents of their custodial rights without notice should be set for hearing as swiftly as possible.”



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