In Case of Emergency Break Glass…or better yet, read Family Code Section 3064

I have discussed on this blog many times how the most difficult job a Family Court Judge has is making custody orders. Property and support can be legally or technically difficult, but they will never compare to the emotions of making custody orders. Never is this task more difficult then when one of the parents comes to court requesting emergency custody orders.

A request for an emergency order is generally accomplished by way of an ex parte appearance. (For those new to this blog, an ex parte appearance is an emergency hearing set on very short notice – typically 24 hours). Because of the short notice the Family Code will only grant an ex parte request to make or modify a custody order under very specific circumstances.

Family Code Section 3064 states:

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.

The Family Code defines “immediate harm to the child” as:

(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.

Another reason for a court to make emergency custody orders is because the other parent has done something that makes them unavailable to care for the child. This includes getting arrested or entering alcohol/drug rehabilitation.

If the court grants your request for an emergency change in custody, the court is required to set the matter for a full hearing within 20 days. This allows the other parent to respond to the allegations and present their case.

Emergency ex parte requests to change custody should only be used in the most extreme situations where the welfare of the child is in serious risk and the evidence to support the request is very strong. Approaching the court “half-cocked” with an emergency request to change custody could backfire on you if you are not prepared to show how failure to change custody will result in harm to the child.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.

Nancy J. Bickford, a Certified Family Law Specialist (CFLS) is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Please call 858-793-8884 to understand how she can help your child custody battle begin and end with keeping your kids where they belong: With you.

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