I want to Ex Parte with You
I am constantly receiving calls from parents who want to rush into court on an emergency basis to change custody. Generally, to establish or change a child custody order, it requires a parent to file a Request for Order (RFO) with California Judicial Council Form FL-300. In an emergency, a parent may file an Ex Parte Application requesting temporary sole legal and physical custody.
According to Family Code Section 3064, the court shall (must) refrain from making Ex Parte orders unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California. The law instructs judges to reject Ex Parte request unless you demonstrate that the child will suffer an immediate risk of harm or removed from the state.
Generally, you have to notify the other party of when you intend to go Ex Parte and what you are requesting. In some circumstances, you can seek temporary emergency or Ex Parte orders for child custody without giving the other side notice. I will provide some practical case analysis regarding notice.
Step 1: Determine if Notice is Appropriate
According to California Rule of Court 3.1203, notice must be given to the other party by 10:00 am the court day before the ex parte appearance. Under exceptional circumstances, notice can be waived by the court if the court finds that giving notice would place the minor at risk of harm or the purpose of the order would be defeated by giving notice.
Whoever notices the opposing party, must not be a party to the action. So if you represent yourself in Pro Per, make sure that you do not give ex parte notice. It must be someone over 18 years old of competent mind. According to California Rule of Court 3.1204, the notice given must include the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 3.1203, the applicant informed the opposing party where and when the application would be made.
An example of a case of when notice may not be required, would be one of recent and systematic physical abuse or a credible threat of child abduction. As a practice pointer, generally think to notice, but weigh the circumstances carefully. It is best to consult with an attorney when making a decision not to notice. Making a decision to go Ex Parte without a compelling reason could be costly.
Gave Notice Example
Recently, my client was incarcerated and made a power of attorney for her mother to care for her 8 year old daughter. The Father had never been a part of the child’s life. Somehow, he removed the child from school and concealed her whereabouts. The child was sending text messages to family that she was being hit by her father.
When the mother was released from incarceration, the father refused to give her any information about the whereabouts, safety, and wellbeing of the minor. In this situation, I did provide notice for the father to come to court and that I would be seeking sole custody based on his conduct.
I gave notice in this situation to see if I could talk the father into a resolution and avoid court. The father did not show up to the Ex Parte and the mother was granted sole physical custody on an Ex Parte basis. The matter was set for a full hearing 45 days later. Without notice the court could have set the matter for a hearing with no temporary orders for custody, thus making our Ex Parte application have no effect.
Did Not Give Notice Example
Recently, a client on mine, a mother, was residing with the father of their minor infant child. The father and his family kicked the mother out of the home and refused to let her leave with the baby. The father and his family were moving to Texas. They were evicted from their home and had sent text messages that they were on their way to Texas and that the mother would never see her child again.
I this situation, I did not give the other side notice of the Ex Parte request. I went Ex Parte and obtained an order for temporary sole physical custody. We were able to obtain the child back and work out a resolution to the case. Notice was not given due to the real threat of the other parent fleeing the state with the child.
Step 2: Drafting Your Ex Parte Legal Documents
The following is an overview of the forms needed for only a request for temporary emergency custody orders under Family Code Section 3064.
- Declaration Regarding Notice Los Angeles Superior Court Local Form
- A Request for Order (RFO) Cover Sheet FL-300 with Accompanying Declaration
- A Proposed Order for the Court- FL-306 or a drafted legal Proposed Order to allow the Judge to review and adopt or strike out some items.
- The Declaration Regarding Notice- This is Los Angeles Local Form FAM-075
- The Ex Parte Request Motion- FL-300 with an attached declaration of the reason that the minor is an immediate risk.
- A Proposed Order- FL-306 or a drafted legal Proposed Order to allow the Judge to review and adopt or strike out some items.
Filing your Ex Parte Paperwork at the Courthouse
Arrive to court at 8:00 am with your Ex Parte documents. The clerk should be open for Ex Parte filings at this time. If you wait until 8:30 am to file, you might get stuck in a big line and cause yourself stress about getting the paperwork to the clerk on time. If you do not have a fee waiver, the cost is $90.00 for the motion fee. The clerk does not stamp or take the documents for you, but indicates on the paperwork that you paid the fee.
After your paid the clerk for your Ex Parte motion, take your documents to your assigned judge’s courtroom. Give the documents to the clerk and then sit and wait. The Judge’s generally do not call the parties on Ex Parte hearings, but decide to grant of deny them based on your paperwork submitted. Decisions are generally made after the mid-morning break at about 10:30 am. At that time, the clerk will inform you if your orders were granted or denied. In some circumstances, the judge may call your case to inquire about some safety issues.
Opposing an Ex Parte
If you are noticed for an Ex Parte, it is smart to file a response on the morning of the hearing. Although, you may not know what the other party is alleging against you, you should be able to tell your side of the story about why changing custody orders and depriving you of your children is not an emergency.
Teenage Parents and Ex Parte Applications Require a Guardian Ad Litum
When teenagers become parents it creates extra precautions in the family law court. Minors do not have the capacity to participate in court proceedings on their own. Teen parents must have a Guardian Ad Litum (G.A.L.) appointed for them by the court. Teenage parents require a G.A.L. appointment by the court of a parent, attorney, grandparent, or other adult to make legal decisions for them based on their wants in the case. The G.A.L. ultimately makes the decision in the case in what is in the best interest of the teenage parent. If you need a G.A.L. appointed for your child, who is a parent, download California Judicial Council Form FL-935, Application and Order for Appointment of Guardian Ad Litem of Minor –Family Law.
If a minor parent going to court over a custody dispute did not file FL-935, it is likely to cause delay in your case. Make sure to use this form if a minor parent is filing an Ex Parte regarding her child. At the Stanley Mosk Courthouse, those requests are handled in Department 2.
Teenage parent cases are difficult on both sides of the family. Grandparents act as parents and resentment builds up between the two sides of the family. Teenage parents often lack the maturity and time to raise a minor child.