• How to File an Emergency Custody Motion

How to File an Emergency Custody Motion

Filing an emergency custody motion, also known as an ex parte motion, is common in family law cases. An emergency custody motion can help California residents get immediate legal relief regarding custody issues in divorce, legal separation and paternity cases. California Family Law Code section 3064 outlines the requirement of an emergency custody motion. Specifically, the moving party must adequately show there is immediate risk of harm to the child or that he/she will be removed from California. If this is not shown, the motion will be denied. Read on to learn how to file an emergency custody motion in California and how A People’s Choice can help you.

An Emergency Custody Motion Requires Adequate Notice

To file an emergency custody motion, California law requires notice to the other party. The notice must be given to the other party by 10:00 a.m. the court day before the ex parte appearance. Notice can be waived by the court if there is a sufficient finding that the child will be placed in immediate harm if the other party receives notice, or that the order may be defeated by giving notice. The notice served on the other party must include the time, date, hearing place, a description of what orders are being requested, and whether opposition is expected.

“My spouse was threatening to leave out-of-state with our son. We were just starting our divorce case and unfortunately we didn’t have any formal court orders about custody or visitation” P. Duncan
“A People’s Choice provided me with fast help. We were able to put together all the necessary paperwork and a very complete declaration that told my story for the judge to read.” P. Duncan
“The court granted a temporary order of custody and set our case for a follow-up hearing. The temporary order alleviated my stress and gave me an order the police could enforce.” P. Duncan

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Documents for Ex Parte Emergency Custody Motion

To begin with, a number of documents must be completed and served on the opposing party when seeking an emergency custody order:

  • Request for Order
  • Declaration of Facts
  • Income & Expense Declaration – when relevant to the relief requested.
  • Temporary Emergency Order
  • Declaration regarding notice of application for emergency order based on personal knowledge
  • A memorandum of points and authorities (if required by the court)

Complete other forms if required by your local court rules. Follow your court’s local rules for reserving the court hearing, submitting your paperwork, and paying the required filling fees.

How to Set Emergency Custody Motion

First, arrive at the courthouse at 8:00 a.m. with your completed ex parte documents. Next, pay the required fee and get a court hearing date (allow yourself enough time to provide notice to the opposing party). Third, serve the filed court documents on the non-moving party. Lastly, on the day of the ex parte hearing, take your copy of the ex parte documents to the assigned judge’s courtroom. Provide the clerk with the documents if needed. The judge will call your matter at which time you may need to answer questions. Sometimes the judge will not ask any questions and simply make their decision based in the paperwork. At the hearing, the judge may grant or deny your ex parte motion.

Once the temporary ex parte order is either granted or denied, the judge will set a date for a full hearing in which all parties must attend. Both parties will be provided the opportunity to present other evidence supporting their case. The court will consider the best interests of the child when awarding the permanent custody order. In California, there is a presumption that custody by an abusive or incompetent parent is not in the best interest of the child.

In conclusion, you do not have to hire an attorney to file an emergency custody order in California. Contact A People’s Choice for more information about how we can help you prepare and file your emergency custody motion. Call us at 800-747-2780 for more information.

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By |2018-01-18T15:46:34+00:00December 4th, 2016|Family Law|16 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

16 Comments

  1. Brianna October 3, 2017 at 6:06 pm - Reply

    My ex boyfriends girl friend came to mh home and bascially beat me up.. and punched my mom in the face infront of my children.. now he wants cusrody to bring my 8 month old son around her. I am very concered about my sons safety

    • Sandy McCarthy October 4, 2017 at 9:40 am - Reply

      Brianna – Do you have any current custody order now? If so, you may want to file a motion to modify it with the specific request that the girlfriend not be around the baby. You could also consider filing a formal restraining order. Both of these processes would ideally require professional help from an office like ours or an attorney to make sure the documents are properly prepared. Let us know if you would like some help. You can reach us at 800-747-2780.

  2. Marie October 11, 2017 at 5:15 am - Reply

    I filed an exparte but I’m not sure if I have enough grounds. I’m nervous to be denied. I do have a prior order, in a hearing I missed by mischeduling court call. Orders were to be father completes therapy, and then progresses to supervised visits with a professional. At the hearing I missed, the judge didn’t follow the previous order, in fact changed it to no supervised visits, and he could take her to his county. Mind you, he’s a repeated felon. His last violent crime was 2015, and he has had no prior relationship with my child. He has seen her five times
    In his life. Four times when he was born-1 years old and once when he was five. Just phone calls. Recently. (He is 11) I filed an exparte to stop this from happening (him taking her unsupervised) and wrote on my declaration that he uses drugs and is active gang member. Will this suffice? It is true. I have a video of him doing drugs, on two occasions since our hearings, on Saturdays which is when he will eventually get to take my son.

    • Sandy McCarthy October 11, 2017 at 8:46 am - Reply

      Unfortunately I cannot tell you whether or not what you have written will be sufficient enough for the court to grant what you are asking. If the court denies your request for a temporary order, you may want to contact us at 800-747-2780 to see if we can modify your declaration prior to the regular hearing on this.

  3. Tati October 23, 2017 at 3:48 pm - Reply

    My ex and I have share joint custody,my daughter lives with him during the week and I have her on weekends.I know for a fact that my ex is on drugs and and is not in the right state of mind he and his girlfriend are always fighting so he drags my daughter back and forth from his girlfriends to his moms. Yesterday his sister had to call the cops on him because he wouldn’t stop yelling and even pulled his moms hair i don’t know why he didnt get arrested. He lives in another county as me how do i go about getting an emergency custody order?

    • Sandy McCarthy October 25, 2017 at 11:41 pm - Reply

      If you want to get an emergency order please contact our office by phone at 800-747-2780. We can help you put together all of the required paperwork to explain your story to the court in a clear and concise manner.

  4. Jeff December 13, 2017 at 11:14 pm - Reply

    My daughter’s mom informed me today that she filed an emergency order to show. I refused to sign approval for her to leave the country with our 20 month old. What are my rights? Will I have to give up my daughter for that long?

    • Sandy McCarthy December 15, 2017 at 3:42 pm - Reply

      You should obtain copies of the filed paperwork as soon as possible and make arrangements to file a Response to the motion asap. Contact us for help with the documentation at 800-747-2780.

  5. Karen Clark January 1, 2018 at 10:59 pm - Reply

    My ex husband takes our 9&10 yr old everyother weekend. He lives with his gf, her 13 yr old, 8yr old and they have a 7month old together. My ex and his gf are alcoholics. They put the baby in the room with all tge kids and made them watch him all night so they could drink and sleep. Then the following night left for the store(so they said) and were gone for over 3hrs at night. My 10yr old called me upset that the adults were still gone. I said to call her dad immediatly and he just ignored all her calls until his gf answered and yelled at my daughter to leave them alone and hung up on her. I do not feel my children are safe there. I need full custody. Please advise

    • Sandy McCarthy January 2, 2018 at 3:05 am - Reply

      We can help you file an emergency order to request the visitation be modified. You may want to request supervised visitation. Please call us at 800-747-2780 ext. 0.

  6. Kathleen March 21, 2018 at 6:27 am - Reply

    A man who might be my 2 year olds dad haven’t given her back to me yet it’s been 4 days I’ve called police but they won’t do nothing because of no documents showing I have custody when I went to the records at the court house they gave me the run around what do I do?

    • Sandy McCarthy March 21, 2018 at 1:52 pm - Reply

      You should file documents with the court ASAP! Call us at 800-747-2780 for help to prepare an emergency application to the court so you can get a court order that the police can enforce and return your child to you.

  7. Shammah Kenkins April 4, 2018 at 1:16 am - Reply

    My wife left the state with my child without talking to me. They left in November and haven’t been back since. We aren’t in a legal battle at all. I will get my boys in May but I don’t want them to go back. I know I have rights too and I am military. My wife also drinks very heavily. Can I request an emergency custody?

    • Sandy McCarthy April 4, 2018 at 2:20 am - Reply

      You may want to wait to file until you have them in May. Call us to get this started.800-747-2780.

  8. Leslie June 13, 2018 at 9:53 pm - Reply

    My boyfriend’s daughter has been living wirh us the past year. His daughter’s mother came and picked up their daughter the Friday morning before the last week of school causing her to miss her last days of school. She then told him she wasn’t returning her for two weeks. They do not have any custody paperwork. Is this situation sufficient enough to be granted an emergency order.

    • Sandy McCarthy June 13, 2018 at 9:56 pm - Reply

      It’s hard to say but we spend a lot of time putting together the supporting declaration to present your story as clearly as possible. Call us at 800-747-2780.

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