Understanding California Family Code Section 3064 and How To Get a Ex Parte Child Custody Order
After a divorce, child custody battles are very common and frequently cause parents to have great concern for the well-being of their children. It's important to note that Los Angeles County family courts won't modify an existing child custody order or create a new one just based on one parent's desire or opinion. Rather, in order for a parent to receive an ex parte or emergency custody change, a parent has to be able to prove a change in custody will serve the child's immediate best interests.
Child custody ex parte relief depends on the stipulations described under California Family Code section 3064. California Family Code laws prevent a court from granting or modifying child custody on an ex parte until the court sees actual evidence of imminent harm to the child or a legitimate risk that the child will be taken out of the state.
The term ex parte refers to the family courts legal ability to decide at the request and benefit of one parent to the dispute in the absence of the other parent. This means that if the Los Angeles County family court judge believes that in waiting to hear from the other parent in a child custody battle will in some way endanger the child, they can provide ex parte relief.
There are a wide-range of situations that can quality for ex parte relief. These include acts of domestic violence, sexual abuse against the child, removing the child from the state, child neglect, DUI arrest, drug abuse by a parent, careless acts of child endangerment, among other situations. It's important to note that while California laws create legal grounds for relief in these type of situations described above, the family court judge reserves the right to grant ex parte relief in any situation where they believe it will place the child in danger. The key phrase here is “immediate danger.” Just because one parent has poor character or morals and may have committed adultery, this will not typically be considered an emergency.
Ex Parte Relief – Emergency Child Custody Order
In Los Angeles County, California, it is possible for a parent to get temporary custody of a child ex parte, meaning without the other parent present or having been served formal notice. Family Courts are often reluctant to issue rulings ex parte because, under normal circumstances, it offends the sense of justice to enter a ruling against someone's interests without that person taking part in the proceeding. Nevertheless, the courts will issue ex parte custody orders if there is an urgent need to do so.
As discussed above, California Family Code Section 3064 makes it clear that the court is only permitted to issue an ex parte child custody order if there is the danger of immediate harm to the child or immediate risk that the child will be removed from the State of California. You must demonstrate to the court that the matter is an emergency and the court must intervene.
If a parent files an ex parte custody application in a Los Angeles County family court to receive an emergency custody order and the judge agrees with the facts that are outlined in the request, they will either create a new child custody order or simply change the existing one. Further, the judge could decide to grant all, some, or even none of the requests in the application. The emergency order essentially serves as a legal temporarily binding order that will remain in effect until an evidentiary hearing occurs.
Required Information in a California Ex Parte Request (RFO)
California Family Code Section describes exactly what information is needed to apply for ex parte orders for child custody or visitation. The following facts have to be included in in an ex parte request. Known as a “Request for Order:”
- Detailed description explaining how and why the child could be harmed or immediate risk of the child being removed from the state of California
- Dates of each incident
- Description of existing child custody and visitation orders and explanation on how they would be changed if the emergency order was granted
- A completed up-to-date declaration under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), form FL-105.
It can't be overstated that unless one parent can show actual proof their child will suffer immediate harm or that there is a legitimate risk of the child being removed from California, the ex parte request will typically be denied by the Los Angeles County family court judge. Again, if granted, the temporary will stay in place until a hearing, normally within 20 days. Let's take a closer look at the main situations below where an ex parte might be granted. See related: FL 300 Information Sheet for Request for Order.
The Danger of Immediate Harm
If you can demonstrate that your child is in immediate harm and that if the court does not grant you temporary custody of the child the child will be injured, then the court may be willing to grant you temporary custody of the child despite the other parent not knowing or participating in the court hearing. Immediate harm will usually involve domestic violence, which can include physical child abuse, sexual abuse, or severe child neglect.
If you can demonstrate to the court that your child is facing one of these issues at the hands of your child's other parent (or someone living in his or her home), then you may be issued an ex parte temporary child custody order. Keep in mind that your allegations cannot be mere speculation.
You will need to provide credible evidence that your child's other parent has engaged in abuse or intends to engage in abuse. This can include prior arrest records for child abuse, physical evidence of child abuse, or written testimony from the child's other parent that he or she abuses your child.
The Danger of Removal from the State of California
Even if your parent's other child is not abusing the child, it is still possible to get temporary custody of your child. If your child's other parent has indicated that they intend to immediately leave the state of California with your child, this can also be grounds for the issuance of an ex parte temporary child custody order. It is unlawful for a party to remove a child from the state of California pending a child custody hearing. If your child's other parent does leave the state with your child despite the temporary order, your child's other parent will face criminal contempt charges when found.
Procedure and Effect of Ex Parte Child Custody Orders
If your child is in immediate danger of harm or being removed from the state, then you will need a Los Angeles child custody attorney to file an emergency motion for a child custody hearing. If notice can be served twenty-four hours in advance, the hearing is not considered ex parte. If notice is not served twenty-four hours in advance, then the hearing is ex parte and may proceed if your child's safety or welfare is at stake.
If the judge finds that your child is in danger, they will issue the temporary emergency child custody order granting you custody and restraining the other parent from leaving the state with your child. Since the order is temporary, a hearing for child custody must be held shortly thereafter to determine whether the temporary custody order will be continued or dismissed. For this hearing, you will need to serve proper notice upon your child's other parent. The permanent custody order will be entered with the divorce decree (if any) or upon the permanent child custody hearing if outside of divorce.
Call our Los Angeles Child Custody Attorneys to Get Temporary Child Custody
If you are seeking custody of your child and may need to do so on an emergency basis to prevent harm of your child or to prevent the child's other parent from leaving the state with your child, then contact our Los Angeles child custody attorneys.
While it's not legally required to have a lawyer help you with an ex parte application, our knowledgeable divorce and family law lawyers can assist you with making a strong and effective application. We can assist you with gathering evidence, file the proper paperwork, and show you the most important factors to support your claim.
We are familiar with ex parte child custody orders to prevent harm from befalling minor children. We will work with you through the child custody process and accompanying divorce, if any, to ensure that your goals of child custody are met. If you need to fight an ex parte child custody order filed against you, call our law firm to for assistance.
If you sincerely believe your child is in immediate danger or at risk of being taken out of the state of California, contact our law firm at 818-528-3471 to file for a temporary emergency order.
Furman & Zavatsky LLP
Los Angeles Divorce and Family Law Attorneys
15821 Ventura Blvd #690 Encino, CA 91436
Related Forms for California Ex Parte Child Custody Order:
Request for Order – FL 300
Temporary Orders – FL 305
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act – FL 105
Declaration Regarding Notice and Service of Temporary Emergency Orders – FL 303
Application for Order and Supporting Declaration – FL 310
Child Custody and Visitation Application Attachment – FL 311
Proof of Service – FL 330