Rule 65.2.Emergency and interim orders

The rule a family lawyer reaches for when something cannot wait — and the rule that decides what actually qualifies.

Emergency orders. The court may enter an emergency ex parte order on a party's motion or its own. It may do so without notice only where it determines, by affidavit or verified complaint, that immediate and irreparable harm will otherwise result, and the moving party must certify the reasons why notice should not be required.

Where anyone other than the Department of Services for Children, Youth and Their Families seeks ex parte relief, the court examines the parties' Delaware criminal history before granting custody or guardianship, and may review a summary from the Division of Family Services that can include substance abuse and mental health records. The order reflects what that summary showed and names the assigned social worker where there is one. None of it decides admissibility later — the review is for ex parte purposes only, which is the honest way to use untested information when one side is not in the room.

It expires. No ex parte order is extended past fifteen days without an evidentiary hearing giving the adverse party a chance to be heard, unless the court extends it for good cause. An order made without hearing someone is temporary by design.

Interim relief. Applications for interim relief that are NOT of an emergency nature are made by motion after service of process has been accomplished, and decided on affidavits or verified pleadings, or after a hearing if the court wants one. If interim relief is granted or denied without a hearing, either party may ask for an evidentiary one.

Priority scheduling. Where the problem is delay rather than the absence of an order, the answer is a sooner hearing. That request is made by motion and may be decided in chambers without the parties or counsel, once the respondent has been served, notice of the motion given, and the time to respond expired. The papers must set out the nature of the controversy, the relief sought at a priority hearing, and the facts showing that substantial and irreparable harm will follow if the request is refused.

Interim visitation. Also by motion after service. The motion must show that personal jurisdiction over the responding party exists, that there is no enforceable contact schedule already, and that a parent is getting less contact with their child than the court routinely awards. The court may put such matters on a special temporary visitation calendar, schedule them before the assigned judge, or decide them on the papers.