In my last blog, I mentioned the difficulty of getting ex parte or emergency orders in family court. Today, I want to talk about what is an emergency, at least as far as child custody and visitation is concerned, and how ex parte relief may be obtained.
The conversation might as well start and end with Family Code section 3064. That statute provides “[t]he court shall refrain from making an order granting or modifying a custody order on an ex parte basis 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 statute goes on to explain that “immediate harm to the child” includes “having a parent who has committed acts of domestic violence, where the court determines that the acts of domestic violence are of recent origin or are a part of a demonstrated and continuing pattern of acts of domestic violence” or “sexual abuse of the child, where the court determines that the acts of sexual abuse are of recent origin or are a part of a demonstrated and continuing pattern of acts of sexual abuse”.
Other types of emergencies might also apply. However, section 3064 provides a hint of what the Legislature intended when it wrote up this law: domestic violence or sexual abuse (or immediate risk that the child will be removed from the State of California).
Still, there are other paths to ex parte success on the issue of child custody. About 11 years ago, the California’s Court of Appeal said that the failure to provide adequate supervision of a child was a serious and urgent matter warranting ex parte relief, i.e., giving the child from one parent to the other. In that case, a mother had left her four year old son alone at her house and was arrested for this act while the police were evicting her. The father went to court on an ex parte or emergency basis and got the court to order that he be given custody of the child. Even here, however, the order was temporary, pending a further hearing into the matter. But the dad won that hearing as well.
I can also think of another case, one which I was involved in, where the judge gave custody to my client, the father, because the mother was arrested for drunk driving.
The key is to know which facts to present to the judge in the little time that you have to present them and which facts to leave out. For example, the mother in that Court of Appeal case tried to argue that the father was an adulterer. Even if he was, said the court, that type of behavior was really not relevant because it did not affect the safety of the little boy.
The other key, as always, is to know your judge. Not all family law judges in California view the law the same way; in fact, not all San Diego judges do either.
Most importantly, don’t leave little kids at home alone. You may end up regretting it in the most serious way.
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