After a divorce, custody battles often leave parents concerned for the wellbeing of children. The state of California will not modify an existing custody order or create a new one merely because of a parent’s wishes or opinions. To receive ex parte or emergency custody changes, a parent must prove that a change in custody will serve the child’s immediate best interests. Ex parte relief hinges on the stipulations outlined in California Family Code section 3064.
Understanding Section 3064
Under current laws, the state Family Code prevents courts from granting or modifying custody on an ex parte basis unless the court sees evidence of imminent harm to the child or a legitimate risk that someone will remove the child from the state. The term ex parte refers to the courts ability to decide at the request and benefit of one party to the dispute.
If the court believes that waiting to hear from both sides of a custody battle will endanger the child in question, it will provide ex parte relief. Situations that may qualify for ex parte relief include:
- Domestic violence. The court will grant relief if it believes the parent in question has committed an act of domestic violence that is either recent or part of an ongoing pattern.
- Sexual abuse. The court will also grant relief if it believes a parent has committed a recent act or ongoing acts of sexual abuse against the child.
- Taking a child out of state. If a parent plans to take the child outside of the state, violating existing custody arrangements, the court will grant relief.
- Neglect. The court may also change custody arrangements on an ex parte basis if it believes that a parent is failing to provide proper supervision.
While the laws and legal precedents create grounds for relief in the above situations, the court reserves the right to grant ex parte relief in any circumstance it feels will endanger the child. A drunk driving arrest, evidence of parental drug abuse, and other careless acts of child endangerment may also represent imminent threats and grounds for ex parte relief.
Acts that may not serve as valid grounds for emergency custody orders include any situation that would not place the child in immediate danger. For example, a parent who commits adultery or gambles is not likely endangering the child with those actions. Poor character or conduct will not automatically qualify as an emergency.
What Does Ex Parte Relief Do?
If a parent files an ex parte custody application to receive an emergency custody order and the courts agree with the facts outlined in the request, the court will either create a new custody order or change an existing one. A judge may choose to uphold all, some, or none of the requests in the application. The emergency order serves a temporarily binding legal order that will remain in effect until an evidentiary hearing takes place.
The Role of an Attorney in Matters involving Family Code § 3064
Any parent who wants to file for an ex parte order or fight against a notice of an ex parte application should consider working with a local family/divorce attorney. The state does not require parents to hire attorneys to help with ex parte applications, but a knowledgeable attorney can help you strengthen your application.
An attorney will help you gather evidence, file the appropriate paperwork, and highlight the most pressing facts in your claim. Attorneys who understand the law, and the decisions local judges typically make in ex parte matters, know how to structure applications to protect the children involved in a case.
Ex parte relief is not a way to cheat a parent out of custody privileges, but a serious form of aid designed with a child’s best interests in mind. If you truly believe your child is in immediate danger or that the other parent plans to take the child out of state without permission, don’t hesitate to file for a temporary emergency order.