How Does a Parent Obtain an Emergency (Ex Parte) Custody Order in California?
An emergency (ex parte) order is a rapid and temporary child custody order that can only be approved by family courts under limited circumstances. Here is how to fight an emergency (ex-parte) custody order in California.
California Rule of Court 5.15 states that family courts are only allowed to grant a temporary ex parte order if the petitioning parent is able to provide evidence that their child faces immediate danger or risk of abduction from the other parent. The petitioning parents need to have proof such as witnesses or text messages that the child is in imminent harm or the court is prohibited from granting this order. If the order is approved, it is only in effect until the emergency custody hearing, which will be set within the next twenty days. The receiving parent must be properly served with their custody papers and be notified within one day of the hearing or the order is subject to denial by the court.
Related: How to Get an Emergency Custody Order in California
When Would a Parent Need an Emergency (Ex Parte) Custody Order?
A parent may apply for an emergency custody order only if the health or wellbeing of their child is in immediate danger due to the other parent. Here are some circumstances where an emergency custody order may be warranted:
- A parent’s arrest for drug use, driving under the influence, or other serious crimes
- Claims that the other parent is suffering from mental or physical illness that puts their child in danger
- Signs that indicate there is domestic or sexual abuse in the other parent’s household
- Allegations that the child is being neglected
- Indications that there is a sex offender in the other parent’s home
Related: Grounds for Ex Parte Orders in California
How to Fight an Emergency Custody Order
It is important for a parent who has been served with an emergency child custody order is to learn everything they can about the opposing parents’ request for a new order.
For the receiving parent, it is crucial to look for deficiencies in the petitioning parents’ order request. There are many specific regulations that an emergency child custody order must meet in order for it to be valid in a family court. This includes a completely correct application for the order, proper notice of the order to the opposing parent, and proof that this situation falls under the necessary child endangerment circumstances that allow a grant for an ex parte order. If the petitioning parent fails to meet any of these qualifications, the order can be denied by the court. An opposing parent may want to speak with an attorney to discuss possible deficiencies in the petitioning parent’s order request process.
Additionally, the receiving parent of an emergency child custody order should spend the time period between their notice and the court hearing building a case for themselves. Whether the receiving parent decides to hire an attorney or not, it is crucial to begin preparing for the court hearing as soon as possible. This can include gathering evidence to support their actions as a parent, asking witnesses to vouch for them, learning what the petitioning parent is accusing them of, or anything else an attorney might recommend.
What are the Requirements for an Emergency Custody Hearing?
An emergency custody hearing has specific prerequisites that need to be met according to California Rule of Court 5.15. Here is what is necessary from the petitioning parent:
1. A notice that must include the following:
- State with specificity the nature of the relief to be requested;
- State the date, time, and place for the presentation of the application,
- State the date, time, and place of the hearing, if applicable.
Additionally, the petitioning parent must attempt to determine whether the opposing parent will appear to oppose the application (if the court requires a hearing) or whether they will submit pleadings before the court rules on the request for emergency orders.
2. A declaration regarding the notice that includes one of the following statements:
- The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether the opposition is expected and that, within the applicable time under California Rule of Court 5.165, the applicant informed the opposing party where and when the application would be made.
- That the applicant attempted in good faith to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party.
- That, for reasons specified, the applicant should not be required to inform the opposing party.
It is important to remember that a mistake in any of the above requirements from the petitioning parent can lead to a denial of the order and/or hearing by the court. The opposing parent is entitled to bring up any deficiencies made by the petitioning parent in their application, notice of papers, and serving. This may be useful for an opposing parent attempting to stop an emergency custody order.
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If you or a loved one is seeking to fight an emergency custody order, contact us. We’ll get you in touch with the most qualified attorney for your unique legal matter. Get your free consultation with one of our California Child Custody Attorneys today!