Seeking Emergency Relief in Family Court

By May 21, 2020 May 26th, 2020 News

A family law proceeding called a Request for Order allows a party to seek various forms of interim relief from a family court on matters concerning child support, spousal support, custody and visitation, attorney’s fees and costs, and more. In Orange County Superior Court, it often takes six to eight weeks (or longer) after filing for a Request for Order to be heard. When a party to a divorce or paternity case needs immediate relief, he or she may not be able to wait this long for a Request for Order to be heard.

An option for obtaining urgent relief in a family law case is to file an Emergency Request for Order, often called an “ex parte” application for orders. Pursuant to California Rules of Court, Rule 5.151, “the 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. . . . 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; or

(3)  Make orders about procedural matters, including the following:

(A)  Setting a date for a hearing on the matter that is sooner than that of a regular hearing (granting an order shortening time for hearing);

(B)  Shortening or extending the time required for the moving party to serve the other party with the notice of the hearing and supporting papers (grant an order shortening time for service); and

(C)  Continuing a hearing or trial.”

Family courts generally do not consider financial issues such as requests for child support, spousal support, and attorney’s fees to be appropriate for an emergency hearing.

As part of the written application for an Emergency Request for Order, the party seeking relief must identify the opposing party and/or his or her family law attorney to the court and provide contact information for same. The requesting parent or spouse must also provide written testimony, based on the personal knowledge of the declarant, showing that the relief requested is appropriate for an emergency hearing, rather than using the regular Request for Order procedure. The written declaration must make an “affirmative factual showing of irreparable harm, immediate danger, or any other statutory basis for granting relief without notice or with shortened notice to the other party.”

Before filing an Emergency Request for Order, is essential to consider whether the relief is appropriate for an ex parte application. Parties who are unsure whether their circumstances qualify for emergency relief should contact a skilled Orange County family law attorney. It is not uncommon for parties to a divorce or paternity case to abuse the ex parte process by filing improper applications for emergency relief. For this reason, the applicant must disclose to the court whether previous applications have been made on the same issue and must state the outcome of such proceedings. Parties who bring ex parte applications without justification may be subject to monetary sanctions imposed by the court pursuant to Family Code Section 271.

In addition to the foregoing requirements, “the applicant has a duty to disclose that an emergency order will result in a change in the current situation or status quo. Absent such disclosure, attorney’s fees and costs incurred to reinstate the status quo may be awarded.” Where the application seeks to orders granting or modifying child custody, the applicant 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. If no orders exist, explain where and with whom the child is currently living; and

(E)  Include a completed Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL-105) if the form was not already filed by a party or if the information has changed since it was filed.”

Emergency orders for child custody are generally limited to circumstances where there is an immediate risk that a child will be removed from the State of California, or where a child is at immediate risk of domestic violence, sexual abuse, or some other type of harm.

Prior to obtaining emergency relief, the applicant must give notice to the opposing parent or spouse. California Rules of Court, Rule 5.165 requires the party bringing an Emergency Request for Order to give notice no later than 10:00 a.m. on the court day prior to the appearance. As part of the notice, the applicant must inform the other party of the nature of the relief requested, the date, time, and place of the hearing, and must attempt to determine whether the opposing party will oppose the ex parte application.

When filing the Emergency Request for Order with the family court, the applicant must include a declaration stating that the required notice has been given, or state facts to justify why the court should consider the application despite shorter notice or no notice to the other party. To justify shorter notice to the other party requires “exceptional circumstances.” When a party requests the court to waive the notice requirement, the applicant must show good cause, which may include:

(A)  Giving notice would frustrate the purpose of the order;

(B) Giving notice would result in immediate and irreparable harm to the applicant or the children who may be affected by the order sought;

(C)  Giving notice would result in immediate and irreparable damage to or loss of property subject to disposition in the case;

(D)  The parties agreed in advance that notice will not be necessary with respect to the matter that is the subject of the request for emergency orders; and

(E)  The party made reasonable and good faith efforts to give notice to the other party, and further efforts to give notice would probably be futile or unduly burdensome.

Finally, the application for emergency orders must include proposed temporary orders and must be served on the opposing party or that party’s attorney “at the first reasonable opportunity before the hearing.” These rules do not apply in cases filed under the Domestic Violence Prevention Act. Parties in need of domestic violence restraining orders should consult an Orange County family law attorney regarding such issues and should contact law enforcement if they are in immediate danger.

After the Emergency Request for Order has been filed, the family court may require all parties and/or their family law attorneys to appear at the hearing or may make emergency orders based on the pleadings filed with the court.

by Douglas A. Hatherley, CFLS