EMERGENCY CUSTODY

One of the most common yet poorly understood problems facing Attorneys and Parents at the Sacramento County Family Law Court House is the Issue of Emergency Custody Orders.

Many people still refer to the process of obtaining an emergency order as an Ex Parte Order. However, the new version of the California Rules of Court which took effect January 1st, 2013 now changes the name of these orders to REQUEST FOR EMERGENCY ORDERS.

The new procedures are listed in the latest version of the California Rules of Court Rule 5.151. The new rules state that these Emergency Custody Orders should only be requested “to address matters that cannot be heard on the Court's regular hearing calendar.” The rules further state that a parent should only request an Emergency Custody Order “to help prevent an immediate danger or irreparable harm to a party or to the children involved in the matter.”

Judges at the Sacramento Family Law Court House will take the requirement for an emergency situation very seriously when a parent asks for the Court to issue an emergency custody order. Most Courts will want to make sure that the situation that is being discussed is an actual emergency that will justify an order without setting a regularly scheduled hearing.

An Attorney seeking an Emergency Custody Order for their client must give notice by telephone to the opposing Attorney or Party no later than 10:00 a.m. On the court day before the matter is to be brought to the Court. If proper notice cannot be given by at least 10:00 a.m., than the matter must be heard 2 days after the day of the notice is given.

The new rules also make a small but important change in the procedures used by an Attorney when requesting an Emergency Order. Under the previous Rules of Court, the party requesting an order did not have to provide the opposing attorney with an actual written copy of their Motion until the day of the appearance in Court.

This has now been changed with the enactment of Rule 5.167(a). The new Rule states: “A party seeking emergency orders...must serve the papers on the other party or on the other party's attorney at the first reasonable opportunity before the hearing. Absent exceptional circumstances, no hearing may be conducted unless such service has been made.”

The Court's now want each side to provide the other side with their written papers before the day of Court. Clearly the best practice would now be to have the papers finished before giving notice to the other Attorney about the emergency request. This way, a Court be less likely to be persuaded by an opposing attorney that he or she did not have ample time to review the papers, and request a one or two week continuance in order to prepare a response.