The due process notice requirements of motions, orders to show cause, and other filings are often in direct conflict with the patience levels of litigants -- and, sometimes, their counsel -- to be heard by a court. As such, a client will demand that instantaneous action be taken in court and the unwanted/unwarranted/errant conduct immediately be brought to the attention of the bench officer. But what qualifies as conduct that requires an immediate remedy?
Consider this hypothetical: Joseph and Mary have been divorced for six years. Their judgment provides a visitation schedule for Joseph (alternate weekends from Friday to Monday and four weeks in the summer), but does not provide a defined holiday schedule for visitation. Mary has had the children on Thanksgiving and Christmas for the past five years. This year, Joseph asked for Thanksgiving, but Mary denied him the visitation because it did not fall during his visitation time. Joseph asked for Christmas and offered to swap his weekend to accommodate the change. Mary again denied the request stating, "that is not in the court order, and it is not your weekend, and we are going on a cruise to Mexico for Christmas." On December 23, Joseph filed an ex parte application requesting the Christmas holiday with the children. He also seeks to change in physical custody. Joseph's main contention is that never spending a holiday with the minor children is causing irreparable damage to their relationship. He also never agreed for the children to get a passport or travel to a foreign country. He also points out that the minor children have over 20 school absences this semester because Mary lost her driver's license because of too many automobile accidents. The children had to Uber to school each day. The children's grades are suffering as a result of these absences. He gives proper notice to Mary, and they both appear at the ex parte hearing on December 24.
How should the court rule?
What qualifies as an "ex parte"?
The Latin term ex parte roughly translates to "for one party." But what action or inaction by a parent rises to the level that court intervention is necessary "for one party" against the other on short notice?
California Family Code Section 2045(b) provides, "the court may issue ex parte ... [a] protective order." Section 6323(a) states, "Subject to Section 3064: (1) The court may issue an ex parte order determining the temporary custody and visitation of a minor child, on the conditions the court determines, to a party who has established a parent and child relationship." The order for custody or visitation "shall specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members." Section 6323(c). If necessary, under Section 6323(d), the court "shall consider whether the best interest of the child, based upon the circumstances of the case, requires that any visitation or custody arrangement shall be limited to situations in which a third person, specified by the court, is present, or whether visitation or custody shall be suspended or denied."
In People ex rel. Allstate Ins. Co. v. Suh, 37 Cal. App. 5th 253, 257 (2019), the court stated that "[a] court will not grant ex parte relief 'in any but the plainest and most certain of cases.' For this reason, the rules governing ex parte applications in civil cases require that '[a]n applicant ... make an affirmative factual showing ... of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.' A trial court should deny an ex parte application absent the requisite showing." (Citations omitted.) The standard on review for ex parte applications is an abuse of discretion. See Nakamura v. Parker, 156 Cal. App. 4th 327 (2007).
California Rules of Court, Rule 5.151(b) states that, "[t]he purpose of a request for emergency orders is to address matters that cannot be heard on the court's regular hearing calendar. In this type of proceeding, notice to the other party is shorter than in other proceedings. Notice to the other party can also be waived under exceptional and other circumstances as provided in these rules. The process is used to request that the court: (1) Make orders to help prevent an immediate danger or irreparable harm to a party or to the children involved in the matter; (2) Make orders to help prevent immediate loss or damage to property subject to disposition in the case."
However, California Family Code Section 3064 further defines, and possibly places some guardrails on Rule 5.151(b), by providing, "(a) The 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. (b) 'Immediate harm to the child' includes, but is not limited to, the following: (1) 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. (2) 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."
Does this situation truly merit an ex parte?
When I was still practicing law, I once heard a judge say, "if it takes an inch of paper to explain the issue, it is not an ex parte." And, in reality, most ex partes should probably not be filed as ex partes in the first instance. Yet, despite the extremely high numbers of ex partes filed every year in the family courts, there is very little case law on what truly qualifies as an ex parte.
On an ex parte basis, the court cannot grant a temporary move-away. However, the court can grant an ex parte request to prevent a party from moving away with a child or prevent child abduction. See Andrew V. v. Superior Court, 234 Cal. App. 4th 103, 107 (2015); see also Family Code Sections 231, 232, 233(a) and (b), 3064(a). The only other reported case dealing with ex parte custody and visitation issues is Marriage of Slayton, 86 Cal. App. 4th 653, 657 (2001). That case dealt with a mother who was arrested for leaving her minor child unattended while she went to the store. The Slayton court noted that "there appear to be no decisions construing the 'immediate harm to the child' provision of section 3064. However, the Legislature has clearly indicated that it considers the failure to provide adequate supervision of a child to be a serious and urgent matter." As such, courts are left to make decisions based on whether the facts and circumstances demonstrate that an "immediate danger or irreparable harm to the children" is demonstrated by the moving papers, declarations and exhibits, if any.
Besides custody and visitation, the Family Code also provides limited other areas in which relief may be granted on an ex parte basis. Sections 3620 and 3621 allow for expedited child support ordering on an ex parte basis. However, Section 3624 stays the support order for 30 days after it is initially issued while other procedural requirements are met. However, the Family Code does not have a provision for ex parte temporary spousal support awards. Additionally, Section 6325.5, along similar lines as Section 3620, provides for the ability to obtain ex parte relief to prevent the cancellation or modification of any insurance benefit "held for the parties, or their child or children, for whom support may be ordered, or both." Section 6321(a) allows for ex parte orders excluding a party from the family dwelling upon certain conditions being met, to wit: actual or threatened assault or physical or emotional harm of the other party or a minor. Section 6321(b)(2) and (3). Though merely the fact that the parties are getting a divorce may not be sufficient justification to support a claim for sole exclusive use and possession under 6321(b).
Concerning property or other financial or pecuniary interests, Section 2045 provides that "the court may issue ex parte ... [a]n order restraining any person from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, except in the usual course of business or for the necessities of life." In Lee v. Superior Court, 63 Cal. App. 3d 705, 710 (1976), the court stated that the clear intent is to "prevent a transfer -- to maintain the status quo -- and does not authorize the trial court, ex parte or otherwise, to change the status quo by authorizing the sale of property involved in a dissolution proceeding and the transfer of the proceeds to one of the parties without adequate safeguards for the other." Section 2045, in conjunction with Sections 6324 and 6325, grants courts the ability to prohibit specific actions and award exclusive use and possession of the real property to either party on an ex parte basis.
Viewed through a wide lens, the common thread of the allowable ex parte orders is those which are needed to protect the health, safety and welfare of a party or a minor child.
What is required in the ex parte application process?
Along with other procedural requirements (courthouse location, case number, names of parties) for an ex parte filing, California Rules of Court, Rule 3.1201(2), provides that an ex parte must provide a declaration in support of the application. Rule 3.1202(c), "Affirmative factual showing required," provides, "an applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."
Rule 5.151(d)(5), "Applications regarding child custody or visitation (parenting time)," provides that, "Applications for emergency orders granting or modifying child custody or visitation (parenting time) under Family Code section 3064 must: (A) Provide a full, detailed description of the most recent incidents showing: (i) Immediate harm to the child as defined in Family Code section 3064(b); or (ii) Immediate risk that the child will be removed from the State of California. (B) Specify the date of each incident described in (A); (C) Advise the court of the existing custody and visitation (parenting time) arrangements and how they would be changed by the request for emergency orders; (D) Include a copy of the current custody orders, if they are available."
Is notice required for an ex parte?
California Rules of Court, Rule 3.1201(2), provides that a declaration, "based on personal knowledge of the notice given under Rule 3.1204," must be included with the ex parte filing. The notice must be provided to all parties, "no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice." Rule 3.1203(a).
Rule 5.151(b) states that, "[t]he purpose of a request for emergency orders is to address matters that cannot be heard on the court's regular hearing calendar. In this type of proceeding, notice to the other party is shorter than in other proceedings. Notice to the other party can also be waived under exceptional and other circumstances as provided in these rules."
California Family Code Section 241, states that, "[e]xcept as provided in Section 6300, an order described in Section 240 may not be granted without notice to the respondent unless it appears from facts shown by the declaration in support of the petition for the order, or in the petition for the order, that great or irreparable injury would result to the petitioner before the matter can be heard on notice." It should be noted that Section 241 only speaks to great or irreparable injury to the "petitioner" and not the "respondent."
This article is directed solely towards ex partes unrelated to the initial filings for a domestic violence restraining order arising under the Domestic Violence Prevention Act (Section 6200, et seq.). Parties should take appropriate action to obtain immediate orders if they believe they are the victim of domestic violence.
So how should the court rule on Joseph's request?
Does Joseph's request rise to the level of the need for immediate court intervention? It depends...
Authors note: Hogoboom and King, California Practice Guide-Family Law (The Rutter Guide, 2021) Sections 5:213.1 and 5.224.2, raises issues about the interplay of the Family Code, the California Rules of Court and Superior Court Local Rules. Readers should consult their Local Rules to ensure compliance in filing Ex Parte Applications.
is a commissioner of the Los Angeles County Superior Court.