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  1. #1
    Join Date
    Feb 2010
    Posts
    2

    Default Ex Parte Order Shortening Time

    My question involves a child custody case from the State of: CA

    Received Ex Parte notice of hearing. BM is asking for a hearing to modify the court ordered visitation before the planned Spring Break visit. Either she does not want to send or child does not want to come.

    No motion or order to show cause has been filed to modify the current visitation order. So this appears to be requesting a faster motion date?

    Do I need to respond? Is there a way to oppose the motion? I thought modification to visitation in CA warranted mediation, etc. if both parties do not agree? Can BM get the visitation changed that quickly?

  2. #2
    Join Date
    Nov 2009
    Posts
    256

    Default Re: Ex Parte Order Shortening Time

    Quote Quoting lClone
    View Post
    My question involves a child custody case from the State of: CA

    Received Ex Parte notice of hearing. BM is asking for a hearing to modify the court ordered visitation before the planned Spring Break visit. Either she does not want to send or child does not want to come.

    No motion or order to show cause has been filed to modify the current visitation order. So this appears to be requesting a faster motion date?

    Do I need to respond? Is there a way to oppose the motion? I thought modification to visitation in CA warranted mediation, etc. if both parties do not agree? Can BM get the visitation changed that quickly?
    California Family Code Section 3064:

    (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.


    California Family Code 6323:

    6323. (a) 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 pursuant to paragraph (2). The parties shall
    inform the court if any custody or visitation orders have already
    been issued in any other proceeding.
    (2) (A) In making a determination of the best interests of the
    child and in order to limit the child's exposure to potential
    domestic violence and to ensure the safety of all family members, if
    the party who has obtained the restraining order has established a
    parent and child relationship and the other party has not established
    that relationship, the court may award temporary sole legal and
    physical custody to the party to whom the restraining order was
    issued and may make an order of no visitation to the other party
    pending the establishment of a parent and child relationship between
    the child and the other party.
    (B) A party may establish a parent and child relationship for
    purposes of subparagraph (A) only by offering proof of any of the
    following:
    (i) The party gave birth to the child.
    (ii) The child is conclusively presumed to be a child of the
    marriage between the parties, pursuant to Section 7540, or the party
    has been determined by a court to be a parent of the child, pursuant
    to Section 7541.
    (iii) Legal adoption or pending legal adoption of the child by the
    party.
    (iv) The party has signed a valid voluntary declaration of
    paternity, which has been in effect more than 60 days prior to the
    issuance of the restraining order, and that declaration has not been
    rescinded or set aside.
    (v) A determination made by the juvenile court that there is a
    parent and child relationship between the party offering the proof
    and the child.
    (vi) A determination of paternity made in a proceeding to
    determine custody or visitation in a case brought by the district
    attorney pursuant to Section 11350.1 of the Welfare and Institutions
    Code.
    (vii) The party has been determined to be the parent of the child
    through a proceeding under the Uniform Parentage Act (Part 3
    (commencing with Section 7600) of Division 12).
    (viii) Both parties stipulate, in writing or on the record, for
    purposes of this proceeding, that they are the parents of the child.

    (b) The court shall not make a finding of paternity in this
    proceeding, and any order issued pursuant to this section shall be
    without prejudice in any other action brought to establish a parent
    and child relationship.
    (c) When making any order for custody or visitation pursuant to
    this section, the court's order 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. Where the court
    finds a party is staying in a place designated as a shelter for
    victims of domestic violence or other confidential location, the
    court's order for time, day, place, and manner of transfer of the
    child for custody or visitation shall be designed to prevent
    disclosure of the location of the shelter or other confidential
    location.
    (d) When making an order for custody or visitation pursuant to
    this section, 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.


    Yes, you need to respond. What county are you in? I ask this because many counties will have the specifics re: how to respond, etc. listed on their websites.

  3. #3
    Join Date
    Feb 2010
    Posts
    2

    Default Re: Ex Parte Order Shortening Time

    It would be in San Francisco County.

    Not sure how I would respond, other than objecting to request for a motion hearing on short notice (shorter than the 21 days). Is there a defense for that?

  4. #4
    Join Date
    Nov 2009
    Posts
    256

    Default Re: Ex Parte Order Shortening Time

    Ex Parte Info SF County Local Rules

    Go to section 11.8 and read the info there.

    You'll need to appear at the hearing.

    Contact the court and ask if they have forms for responding to a notice and application for an ex parte hearing. If they can't or won't give you info, speak with an attorney. Many will do consultations for no charge. It's just a matter of calling around.

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