By: Alphonse F. Provinziano, Esq.

From No Argument at All, to a Hearing on the Record, to Possible Settlement

The experience at an ex parte child custody hearing varies greatly from county to county in California, and even from courtroom to courtroom in the same county.  The courts’ approaches fall generally into two formats of how to handle an ex parte emergency child custody matter – 1) the court will review the pleadings and make a ruling on them without hearing oral argument and 2) the court will review the pleadings, listen to argument, and then make a ruling.

It is important to know the local practices and practices from courtroom to courtroom.  At Provinziano & Associates, we handle matters in several major Southern California metropolitan counties (Los Angeles, Orange, San Bernardino, and Riverside among other), we have familiarized ourselves with the local practices of each jurisdiction.  Currently, at the time of writing this article, there is no systematic procedure set up to make sure that ex partes are handled the same in each courthouse throughout the state.  Being prepared for what will happen is half the battle.

Review of Pleadings Only

Many courts will take an approach that they must assume everything in the declaration of the moving party is true and make a ruling based solely on the moving papers.  In this case, the litigants submit the paperwork (called pleadings) on the day of the hearing (in Los Angeles and Orange counties for example) or several days before the hearing (in some Inland Empire counties – such as San Bernardino).  When the parties show up to the hearing, the court will have reviewed the paperwork that morning or in advance.  In this case, the court will often have a ruling on the emergency child custody order when the parties arrive or shortly thereafter.

Review of Pleadings and Argument

Some courts will review the legal paperwork – called pleadings – but then want to hear arguments from the parties.  I find that this is inconsistently applied across the board.  In many cases, it might be done because the court wants some clarification from the moving party or wants to hear from the other parent for an explanation.  Whatever the case, the argument on the record will make an impact on the ultimate ruling of the Court.

Settlement Anyone?

The parties do have an opportunity while waiting for the court’s ruling to try to hammer out a deal.  This can often be accomplished by the parties meeting and conferring with the assistance of their attorneys.  While you can’t expect a resolution of all issues, for many families this is a better option than submitting the issue to the court and taking the risk of not obtaining the orders needed to resolve the emergency.  In practice, in true cases of emergencies, such as a child abduction, the parent committing the alleged abduction often does not show up, so there is no chance of settlement In that instance, the only option is moving forward to get the necessary orders to get a return of the child on an ex parte emergency basis.

What Happens After the Hearing

The ruling will be made in writing, and should be recorded on what is currently the California Judicial Council Form entitled “Temporary Orders”. In the case of ex parte emergency child custody orders, it will have specific child custody orders and possibly attachments directing the opposing party or parent to post a child abduction bonds, for the assistance of the district attorney to offer assistance to the parent seeking to recover their child, or requiring the other parent to have visitation only with a paid supervisor, for example.

If the court grants an emergency child custody order or an order shortening time, the parties will most often be referred to Child Custody mediation.  This is required by California Family Code section 3190.  The parties will often attend mediation, and the next step will be to return to court for the return hearing.  At this hearing, both parents will have an opportunity to tell their side of the story and the court will make a ruling on this subsequent court date as well.

At Provinziano & Associates, we guide our clients step by step through the ex parte process.  We help them understand what to expect at the hearing and how that particular courtroom will handle their request.  Armed with this knowledge, a parent in an ex parte child custody battle can be prepared and know what to expect when they walk into the courtroom.

© Alphonse F. Provinziano, Esq.

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