Ex Parte Custody and Parenting Time Orders in Michigan

What an ex parte order is

An ex parte order is entered without prior notice to, or a hearing with, the other party. Pending a temporary order, the court may enter one only if it is satisfied by specific facts in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to give notice, or that notice itself will cause adverse action before an order can be issued (MCR 3.207(B)(1)).

What a custody or parenting time request must show

Under MCR 3.207(B)(1)(a), the affidavit or verified pleading must include:

• facts showing whether the child has an established custodial environment with either parent, both, neither, or a third party; and
• either facts showing the order will not change that environment, or facts showing clear and convincing evidence that changing it is in the child’s best interest. A third party must show by clear and convincing evidence that parental custody is not in the child’s best interests.

SCAO form FOC 137, Affidavit for Ex Parte Motion Regarding Custody or Parenting Time (Rev. 4/26) is built around these requirements. It is an affidavit, so it is signed before a deputy clerk or notary. The matching order form is FOC 138, Ex Parte Order Regarding Custody or Parenting Time (Rev. 4/26).

After the order is entered

• The parent who got the order must arrange service of a true copy on the Friend of the Court and the other party within 3 days (MCR 3.207(B)(2)).
• It is effective when entered and enforceable once served (MCR 3.207(B)(3)).
• It stays in effect until a temporary or final order modifies or replaces it (MCR 3.207(B)(4)).

If you were served with an ex parte order

1. Within 14 days after service, file with the clerk either a written objection or a motion to modify or rescind the order, and serve a copy on the Friend of the Court and the party who obtained it (MCR 3.207(B)(6); MCL 722.27a(13)). The SCAO objection form is FOC 61, Objection to Ex Parte Order (Domestic Relations), Rev. 4/26.
2. If you object, the FOC cancels any hearing date in the order and tries to resolve the dispute within 14 days. If it cannot, it gives you form pleadings and instructions if you are representing yourself and reschedules the cancelled hearing or, if none was set, schedules a hearing within 21 days of the motion being filed (MCR 3.207(B)(5)(b)).
3. If you file a motion to rescind or modify without an objection, the court must hold an evidentiary hearing and resolve it within 21 days, or on the hearing date already in the order (MCR 3.207(B)(5)(a)).

Protection orders are different

Personal protection orders are a separate process. MCR 3.207(A) refers protective orders against domestic violence to subchapter 3.700 of the court rules, and the domestic relationship petition is SCAO form CC 375. If you are in danger, call 911.

Primary sources

Rules and forms change. Check the current version at the source before you file.

• MCR 3.207, ex parte and temporary orders (Chapter 3)
• MCL 722.27a(12) to (15), ex parte parenting time orders
• SCAO FOC 137, Affidavit for Ex Parte Motion
• SCAO FOC 138, Ex Parte Order
• SCAO FOC 61, Objection to Ex Parte Order