Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

What is an Emergency Motion in a New Jersey Family Court?

Needless to say as a New Jersey Divorce Attorney, emergent matters arise all too often.  Recently, I wrote a piece called, "What is a Motion in a New Jersey Family Law Case."  This article shall discuss “emergency motions,” which in a courtroom is known as an Order to Show Cause

I often explain to my clients that an Order to Show Cause shall typically be addressed in a matter of days, as opposed to a Motion takes numerous weeks before it is to be heard by the Court.  While each and every client’s situation is urgent and important, I politely explain that in Family Court a true emergency that would most likely cause immediate and “irreparable harm” to a child or the client.  A typical example is kidnapping and/or removal of a child out of the country or the state of New Jersey. 

I was recently hired on a new matter where just 6 months after the divorce was finalized, my client found out that his ex-wife had a meth lab in her home, which exploded and one of the children suffered burns.  Within 24 hours my office secured an Order to Show Cause granting my client temporary sole custody pending a full hearing in a few weeks.  The children are safe, my client is relived and I am proud of a job well done.  Please read on to learn more about how an Order to Show Cause works in New Jersey Family Law cases.

While an action is pending, it is possible to apply for either a temporary restraint or an interlocutory injunction. If you apply for either of the two, you must apply by motion or by order to show cause pursuant to Rule 4:52-2. The procedure for applying for these is significant to note and is laid out in Rule 4:52-1, which is reproduced below.

Rule 4:52-1 Temporary Restraint and Interlocutory Injunction—Application on Filing of Complaint

            (a) Order to Show Cause With Temporary Restraints. On the filing of a complaint seeking injunctive relief, the plaintiff may apply for an order requiring the defendant to show cause why an interlocutory injunction should not be granted pending the disposition of the action. The proceedings shall be recorded verbatim provided that the application is made at a time and place where a reporter or sound recording device is available. The order to show cause shall not, however, include any temporary restraints or other interim relief unless the defendant has either been given notice of the application or consents thereto or it appears from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon. If the order to show cause includes temporary restraints or other interim relief and was issued without notice to the defendant, provision shall be made therein that the defendant shall have leave to move for the dissolution or modification of the restraint on 2 days' notice or on such other notice as the court fixes in the order. The order may further provide for the continuation of the restraint until the further order of the court and shall be returnable within such time after its entry as the court fixes but not exceeding 35 days after the date of its issuance, unless within such time the court on good cause shown extends the time for a like period or unless the defendant consents to an extension for a longer period.  The order to show cause may be in the form in Appendices XII-G and -H to the extent applicable.

            (b) Order to Show Cause as Process; Service. If the order to show cause issues upon the filing of the complaint, no summons shall issue in the action if the order contains the name and address of plaintiff's attorney, if any, otherwise plaintiff's address; the time within which defendant shall serve and file an answer upon plaintiff or plaintiff's attorney as provided by these rules; and a notice to defendant that upon failure to so file and serve an answer, judgment by default may be rendered against the defendant for the relief demanded in the complaint. The order shall be served upon defendant together with a copy of the complaint and any supporting affidavits at least 10 days before the return date and in the manner prescribed by R. 4:4-3 and 4:4-4 for service of summons, unless the court orders a shorter or longer time or other manner of service.

(c) Hearing; Briefs. Oral testimony may be taken in the court's discretion on the return date of the order to show cause and on the return date of defendant

It is good practice to notify the opposing party of the nature of the relief being sought by way of order to show cause. A majority of Family Court judges will necessitate that you call and speak directly with their law clerks in order to advise them too of the nature of the relief being sought. Furthermore, most judges will consider the Order to Show Cause within a day and then schedule a return date within a week when the court will conduct a hearing, sometimes sooner if the relief sought is because of an emergency. Attached to the Order to Show Cause should be a brief stating the immediate and irreparable harm that will result if the court does not grant the requested relief.    

Orders to Show Cause as Original Process

The Appendix to the Court Rules provides model forms for use when filing an Order to Show Cause as original process. Included in any Order to Show Cause are the following elements:

Summary Relief

Model Form number one is for use when Rule 4:67 or Rule 5:4-3 permits summary relief.

Rule 4:67 Summary Actions; please visit http://www.judiciary.state.nj.us/rules/r4-67.htm to see all of the provisions of the rule

Rule 5:4-3 Answer, Acknowledgment, Appearance

         (a) Generally. Except as otherwise provided by paragraph (b) hereof or by any other rule or statute, a defendant in a family action shall file an answer in accordance with R. 4:5-3 or a general appearance and, without filing an answer, be heard on issues of custody of children, parenting time or visitation, alimony, child support, equitable distribution, counsel fees and other issues incidental to the proceeding. A defendant may also file an acknowledgment of service in accordance with R. 4:4-6.

(b) Summary Actions. In summary family actions in which the process fixes a return day, the defendant need not file an answer, appearance or acknowledgment in order to be heard if the defendant appears on the return day.

Temporary Restraint

Model Form number two is used when immediate relief is required due to difficult circumstances and awaiting the return date will cause immediate and irreparable harm. The order can provide relief pending the return date, pursuant to Rule 4:52.

Rule 4:52 Injunctions; please visit http://www.judiciary.state.nj.us/rules/r4-52.htm to see all of the provisions of the rule 

Preliminary Injunction on Return Date

Model Form three is the form used when immediate and irreparable harm might occur due to waiting for a typical motion. No relief is sought prior to the return date, pursuant to Rule 4:52.

Rule 4:52 Injunctions; please visit http://www.judiciary.state.nj.us/rules/r4-52.htm to see all of the provisions of the rule 

The leading case illustrating this legal provision is Crowe v. DeGioia, 90 N.J. 126 (1982). The court held that preliminary injunctions are only to be used to restore irreparable harm. The court furthered reasoned that harm is not irreparable if “money damages will offer a remedy except in circumstances of severe personal inconvenience.”  

Pendente Lite Orders to Show Cause

Once the complaint has been served on the opposing party, the forms of Order to Show Cause do not necessarily have to conform to the model forms for original process.

Please contact my office if you or a loved one faces an emergency in your family at 732-246-0909 or Edward@Weinsteinlawoffices.com