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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