New Family Ex Parte Rules
Glen L. Rabenn
Certified Family Law Specialist
Effective January 1, 2013, based on recommendations of the Family and Juvenile Law Advisory Committee, the California Legislature has enacted new rules governing requests for family law ex parte orders. These rules represent a significant divergence from prior ex parte procedures.1
PREEMPTION OF LOCAL RULES
Agreeing with the finding of the Elkins Family Law Task Force that local rules can serve as barriers to self-represented litigants from getting their day in court, the legislature has stated that the new ex parte rules preempt any local rules.2
NONAPPLICABILITY TO DOMESTIC VIOLENCE CASES
The new procedures do not apply to actions filed under the Domestic Violence Prevention Act. [Family Code §6200, et. seq.]3
TYPES OF REQUESTS THAT ARE COVERED BY THE NEW PROCEDURES
Ex parte procedures are for the purpose of requesting expedited orders:
1. To prevent an immediate danger or irreparable harm to a party or to the children involved in the matter
2. To prevent immediate loss or damage to property subject to disposition in the case
3. Regarding procedural matters, including:
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)
c. Continuing a hearing or trial.4
HOW NOTICE OF THE EX PARTE APPLICATION IS TO BE GIVEN TO THE OTHER PARTY
Notice of appearance at a hearing to request emergency orders may be given by telephone, in writing, or by voicemail message.5
Comment: In at least two respects, the new rule will require modification of many law office procedure manuals. The new rule does not provide a limiting definition of a “writing.” So, it would appear that any form of writing, including facsimile or email would comply with the new rule. Many law firm’s voicemail messages often tell the caller that “we will not accept ex parte notice by voicemail.” The new rule specifically permits ex parte notice to be left on a voicemail system.
WHEN EX PARTE NOTICE IS TO BE GIVEN
A party seeking emergency orders must give notice to all parties or their attorneys by not later than 10:00 a.m. on the court day before the ex parte application will be presented to the court.6
If the moving party gives notice later than 10:00 a.m. on the court day preceding the application, that party must include his/her declaration requesting that the Court shorten the notice period. The Court can shorten the notice period only if the applicant’s declaration sets forth “exceptional circumstances that justify the shorter notice.” 7
WHEN NOTICE OF THE EX PARTE APPLICATION CAN BE WAIVED
The Court can dispense with the notice requirement only if the applicant files a declaration that includes facts showing good cause not to give the notice. The Court can waive the notice requirement if it finds that giving notice would:
● Frustrate the purpose of the order
● Result in immediate and irreparable harm to the applicant or the children who may be affected by the order sought
● Result in immediate and irreparable damage to or loss of property subject to disposition in the case
The Court can also dispense with notice where:
● 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
● 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.8
Notice To The court
The court may adopt a local rule requiring that the party provide additional notice to the court that he or she will be requesting emergency orders the next court day. The local rule must include a method by which the party may give notice to the court by telephone.9
The rules require the following documents to be filed in support of an ex parte order.
1. Request for Order (form FL-300).
2. A current Income and Expense Declaration (form FL-150) or Financial Statement (Simplified) (form FL-155) and Property Declaration (form FL-160), where relevant.
3. Temporary Orders (form FL-305).
4. A written declaration regarding notice of application for emergency orders based on personal knowledge
5. Memorandum of points and authorities, only if required by the court.10
CONTENTS OF THE APPLICATION AND DECLARATION
There are certain elements that must be included in the Application and Declaration of the requesting party:
1. The name, address and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address and telephone number of the party, if known to the applicant.
2. The declarations must contain facts within the personal knowledge of the declarant that demonstrate why the matter is appropriately handled as an emergency hearing, as opposed to being on the court’s regular hearing calendar.
3. 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.
4. A full disclosure of all previous applications made on the same issue and whether any orders were made on any of the applications, even if an application was previously made upon a different state of facts. Previous applications include an order to shorten time for service of notice or an order to shorten time for hearing.
5. Disclosure that an emergency order will result in a change in the current situation or status quo. If such a disclosure is not provided, attorney’s fees and costs incurred to reinstate the status quo may be awarded.11
APPLICATIONS REGARDING CHILD CUSTODY OR VISITATION
The rule specifies the contents of Applications for emergency orders, granting or modifying child custody or visitation (parenting time) under Family Code section 3064.
1. A full, detailed description of the most recent incidents showing:
● Immediate harm to the child as defined in Family Code section 3064(b)
● Immediate risk that the child will be removed from the state of California
2. Specify the date of each incident described above:
3. Inform the court of the existing custody and visitation (parenting time) arrangements and how they would be changed by the request for emergency orders
4. 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
5. 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.12
CONTENTS OF NOTICE AND DECLARATION REGARDING NOTICE OF EMERGENCY HEARING
When notice of a request for emergency orders is given, the person giving notice must:
1. State with specificity the nature of the relief to be requested
2. State the date, time and place for the presentation of the application
3. State the date, time and place of the hearing, if applicable
4. Attempt to determine whether the opposing party will appear to oppose the application (if the court requires a hearing) or whether he or she will submit responsive pleadings before the court rules on the request for emergency orders.13
An application for emergency orders must be accompanied by a completed declaration regarding notice that includes one of the following statements:
1. The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 5.165, the applicant informed the opposing party where and when the application would be made
2. That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party
3. That, for reasons specified, the applicant should not be required to inform the opposing party.14
SERVICE OF EX PARTE PLEADINGS
After providing notice, each party must be served with the documents requesting emergency orders as described in rule 5.167 or as required by local rule. This rule does not apply to a party seeking emergency orders under the Domestic Violence Prevention Act.15
1 Note to the reader: Much of the text in this article is quoted from the referenced rules. I have elected not to use quotation marks and, instead, I have simply cited the applicable rule as a footnote. The full text of the new rules can be found at http://www.courts.ca.gov/cms/rules/index.cfm?title=five
2 Rule 5.4
3 Rule 5.151(a)
4 Rule 5.151(b)
5 Rule 5.165(a)
6 Rule 5.165(b)
7 Rule 5.165(b)(1)
8 Rule 5.165(b)(2)
9 Rule 5.165(c)
10 Rule 5.151(c)
11 Rule 5.151(d)
12 Rule 5.151(d)(5)
13 Rule 5.151(e)(1)
14 Rule 5.151(e)(2)
15 Rule 5.165(b)