Art. 3945.Incidental Order of Temporary Child Custody; Injunctive Relief; Exceptions

Article 3945 governs a narrower slice of the injunctive relief covered by Article 3944: an incidental order of temporary custody granted in a divorce or related proceeding. Because an ex parte order issues without the other parent present to respond, this article layers extra safeguards onto the general injunction rules to guard against unfairness to the absent parent.

Before a court can grant that kind of order, Paragraph B requires specific facts, shown by a verified petition or supporting affidavit, establishing that immediate and irreparable injury will result to the child before the other parent can be heard. The moving party's attorney must also certify, in writing, either the efforts made to give the other parent reasonable notice or the reasons notice should not be required at all.

Any ex parte order that issues carries its own built-in limits under Paragraph C: it expires by operation of law within thirty days, extendable once for up to fifteen more days on a showing of good cause; it must provide for at least forty-eight hours of visitation by the other parent during any fifteen-day period unless irreparable injury from visitation itself is shown; and it must be endorsed with the date it was signed and the date and hour set for the rule to show cause. That rule to show cause has to be heard within thirty days of the ex parte order.

An order that does not comply with these requirements is unenforceable and void. If the court instead denies ex parte relief, it must allocate parenting time between the parents at the show-cause hearing unless irreparable injury to the child would result. Article 3945 does not apply to a petition invoking the Domestic Abuse Assistance Act, the relevant Children's Code provisions, or the Post-Separation Family Violence Relief Act, which proceed under their own separate statutes instead.