What is an Ex Parte Motion? In certain circumstances when there is the potential for irreparable harm, a litigant can file an ex-parte or emergency motion. There are certain requirements. Timely notice must be provided to the other side to include the date, time, department, and reason for the motion and the ex-parte application. A declaration describing the orders requested and the reasons should be provided to the other side. Each Family Law Judge sets their own ex parte hearings. A list of Family Law Ex parte Hours by Department can be found here.

These specially set, emergency motions require a true emergency as defined by California Rule of Court 5.151(b).

Cal. Rule of Court 5.151(b) states in relevant part:

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 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;

Ex Parte Motions can also be filed with the Court to deal with certain administrative procedures, such as entertaining a written agreement by the parties, requesting to advance a hearing date, requesting an evidentiary hearing or other procedural matters.

If the ex-parte request is not an emergency, the motion will be denied because the purpose of a request for emergency orders is to address matters that cannot be put on hold and heard on the court’s regular hearing calendar. 

Pursuant to California Family Code §3064 and California Rule of Court 5.151(b)(l), the purpose of ex parte custody requests are to make an order to help prevent an immediate danger or irreparable harm to a party or the child involved in the matter, or to prevent the removal of a minor child from the state of California. In the case of imminent or actual danger to a child, there is a statutory definition of emergency which includes harm, risk of immediate harm or risk of flight. 

Cal. Rule of Court 5.151(d)(5) states:

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);

The court will not modify custody or visitation at an ex-parte hearing if the factors set forth in the California Rule of Court are not met because Cal. Family Code 3064 prevents the Court from making non-emergency custody or visitation orders as set forth in Family Code 3064.

California Family Code section 3064 states:

(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.

The rules of procedure for making family law decisions, contained in the Family Code, the California Code of Civil Procedure, the California Rules of Court, and the local court rules, are not mere suggestions. They are commands which ensure fairness by their enforcement. (See In re Marriage of Seagondollar, (2006) 139 Cal.App.4th 1116, 1120; see also Andrew V. v. Superior Court (Jessica) (2015) 234 Cal.App.4th 103, 108.)

According to Cal. Family Code §12, "'Shall' is mandatory and 'may' is permissive." As such, Cal. Family Code §3064 prohibits the court from granting any custody orders on an ex-parte basis, absent a precursory showing of "immediate harm". 

If you have been given ex-parte notice, you should contact an experienced attorney to ensure that your rights to due process are protected and orders are not made in a non-emergency situation. You should also contact an attorney if you need to appear ex parte because there is a danger to a person or property. Livingstone Law, APC handles all facets of divorce from filing the Petition to Final Judgment.  Contact us for a free consultation at (619) 702-1513.