Ex Parte Custody Order
An ex parte custody order is an emergency court order. It’s when one parent goes to court and only gives the other parent 24 hours notice that they are going to court. Someone typically wants an ex parte order to fix an emergency happening involving the child and they want that change to happen right away.
Just a couple of points I would like to make on these:
- Don’t Abuse it
- Need Facts
- Proper Notice
- Clearly State the Emergency
You guys have to realize that a court will ONLY grant the order when there is IMMINENT HARM to the child. California Family Code Section 3044 says imminent harm to the child happens when there is (1) domestic violence or (2) sexual abuse of the child. Other times that the court will grant it is when there is child abuse, drug use (not marijuana), and when one parent doesn’t supervise the child and leaves him alone in the house.
So before you go frantically running into court wanting the judge to restrict the other parent from seeing your child, ask yourselves if you have met the above requirements. If you haven’t, then the judge will surely deny your ex parte order. This is so important because I see parents everyday coming into court filing for an ex parte and the judge lectures the parents on what an ex parte is appropriate for. The best way to piss off a judge is by filing a meritless ex parte.
Whatever the emergency, you have to have enough evidence to prove it. California Rule of Court 5.151 requires an affirmative factual showing of the emergency. That means if there was domestic violence you need to show the evidence of injuries, pictures, medical records, witness statements, 911 recordings, police reports. The more evidence you gather the better your case is. The absolute worse thing to do is go to court and write in your declaration that your partner “hit and abused me.” What does that tell the judge? What happens if your partner says that you’re lying to get more custody time with the children, what are you going to say? Think about the evidence before you run into court.
When to Give Notice
Even though this is an ex parte you still have to give notice to the other side that you are going to court. California Rule of Court 5.165 requires that you give notice no later than 10:00am one court day before the matter is considered. That means if you are going to court tomorrow to file, you need to give notice by 10:00am today.
However, if there is domestic violence, child abuse, or child sexual abuse, you do NOT have to give notice. BUT you need to put this in your declaration as to why you are not giving notice. Judges are not mind readers so you have to tell them why you did not give notice that you are going to court.
State the Emergency
This should be in all caps. You have to realize judges are up late at night reading filings for the next court day. When you walk into court early in the morning this will be the first time the judge reads your case. Judges see hundreds of cases each week. Don’t make the judge look for why you are requesting an ex parte custody order. State the emergency in the first sentence of your declaration. Yes, the FIRST sentence! Make it easy so that when the judge opens up your file he immediate sees “Johnny was sexually abused by his father and I want sole legal and physical custody, here is why….” then list your facts and evidence. Don’t hide the ball and put your best evidence immediately after the emergency.
HOW CAN I HELP?
If you have any more question about ex parte custody orders, divorce, or criminal defense please contact me for a consultation at email@example.com or call 626-227-1176 and ask to speak with me. Connect with me on Google+.
The Law Offices of Levon Kevorkian is a boutique firm located in Pasadena, California handling Divorce, Child Custody, and Criminal Defense cases. Our office is located at 1055 E. Colorado Blvd. Fifth Floor, Pasadena CA 91106.
Disclaimer: This blog post and other blog posts by me are not meant to be legal advice. No attorney-client relationship will be formed by these blog posts.