In this writing, we discuss due process and emergency temporary orders under Arizona family law. To understand the role of emergency temporary orders generally it is helpful to first bear in mind that in Arizona family court cases, each party whose rights may be affected by a court decision is entitled due process under the law. See Cruz v. Garcia, 377 P.3d 1028 (Ariz. App. 2016). This means, at a minimum, notice of the court action and an opportunity to be heard on the matter. See id. (“A family law judgment rendered without notice and a meaningful opportunity to be heard cannot stand.”).
More specifically, the Arizona Supreme Court has noted that “a parent is entitled to due process whenever his or her custodial rights to a child will be determined by a proceeding.” Smart v. Cantor, 574 P.2d 27, 30 (Ariz. 1977). The same true of a parent’s rights to domestic support, such as a child support obligation. See Cook v. Losnegard, 265 P.3d 384 (Ariz. App. 2011). In Cook, for example, the Arizona Court of Appeals vacated a trial court’s child support orders because the orders were entered after the trial court conducted a trial during which it stated it would not consider the issue of child support. See id. The trial court in Cook did not receive or consider evidence on certain child support factors. See id. As a result, the child support orders were entered without due process. See id.
That said, under some very limited circumstances, courts may issue orders without notice to an affected party, on an emergency basis, in order to protect the well-being and safety of a person or their property. See Ariz. R. Fam. L. Pro. 48 (allowing for temporary orders without notice in family court cases to avoid irreparable harm or injury); Aʀɪᴢ. Rᴇᴠ. Sᴛᴀᴛ. Aɴɴ. § 13-3602 (allowing orders of protection without notice); Aʀɪᴢ. Rᴇᴠ. Sᴛᴀᴛ. Aɴɴ. § 12-1809(E) (allowing injunctions against harassment without notice). Usually, these orders are temporary in nature and have additional procedures designed to allow the party who did not initially receive notice to learn about the order and to request / participate in a hearing at a later time. See Ariz. R. Fam. L. Pro. 48(d) (requiring a hearing within ten (10) days of the order); Aʀɪᴢ. Rᴇᴠ. Sᴛᴀᴛ. Aɴɴ. § 13-3602(L) (requiring that an ex parte order of protection notify the nonmoving party of their right to request a hearing); Aʀɪᴢ. Rᴇᴠ. Sᴛᴀᴛ. Aɴɴ. § 12-1809(H) (allowing the defendant to request one hearing at any time during the period during which an injunction against harassment is in effect).
In family court, in Arizona, a party may be able to seek emergency temporary orders without notice during a divorce action, legal separation, annulment, or modification case. See Ariz. F. Fam. L. Pro. 48. In the Superior Court of Arizona, the applicable rule provides that:
A court may grant temporary orders without written or oral notice to an adverse party or that party’s attorney only if the verified motion: (1) clearly shows by specific facts that if an order is not issue before adverse party can be heard, the moving party or a minor child of the party will be irreparably injured, or irreparable injury, loss, or damage will result to the separate or community property of the moving party; and (2) the moving party or attorney provides written certification of the efforts to give notice to the other party, or why notice should not be required.
Ariz. R. Fam. L. Pro. 48(b). It is important to highlight here that the harm has to be “irreparable,” or something that cannot be undone at a later date. See id.
Additionally, even though the emergency temporary may be entered without notice, the rules go on state that “[a]n evidentiary hearing must be set on the motion not later than 10 days after the order’s entry, unless the court extends the time for good cause.” Ariz. F. Fam. L. Pro. 48(d). Also, “[t]he order and notice of the evidentiary hearing must be served as soon as possible after the order’s entry or as the court directs.” Ariz. F. Fam. L. Pro. 48(e). It should be noted that the emergency temporary orders “expire at the date and time set for the hearing on the motion unless court extends the time for good cause.” Ariz. F. Fam. L. Pro. 48(c). In other words, unless the court finds good cause at another hearing to continue the order, the original emergency order without notice should only last for a period of ten (10) days or less. See Ariz. F. Fam. L. Pro. 48.
If you are in need of obtaining or responding to emergency temporary orders in the State of Arizona, related to a family law case, or need help with any other issue in an Arizona family law matter, contact Huffman-Shayeb Law, PLLC to schedule a consultation.
Disclaimer: This publication is for educational and informational purposes only, and represents Huffman-Shayeb Law, PLLC’s understanding of the present state of Arizona law. This publication does not constitute legal advice or counsel, and should not be construed as a comment on the merits of any particular case. It should be noted that the laws and requirements of the State of Arizona may change at any time and that this information may not be complete or correct.
