2-6 How to Request Temporary Emergency Orders

by | Apr 1, 2020

Back to: California Family Law

NOTES & RESOURCES

VIDEO TRANSCRIPT

Temporary Emergency Orders in Family Court

Hi, thanks for using My Court Coach. I’m Jylan and I’m going to be your instructor as we talk about how to request temporary emergency orders in family court and navigate through the form of Request for Order of the FL-300 form in the context of a temporary emergency basis. If you already have a temporary emergency order or you are requesting a temporary emergency order, then this video is applicable to you.

If you’ve already submitted your ex parte application to the court, or you are going to submit your ex parte application to the court, and you have decided to also complete these forms as supporting documents to your application, then this is what you would need to do. You’re requesting an order on one of the following issues:

  • child custody
  • visitation
  • spousal support
  • attorney’s fees
  • domestic violence
  • child support
  • a property order
  • or some other order like selling the home or issuing a passport.

Requesting Emergency Custody Orders

If you’re requesting the court to change any existing custody orders, then you would complete the child custody and child custody and visitation section or child support or domestic violence or property control section. This is just going to be dependent on what the current orders are.

If this is your first time completing one of these, then you would not check off the boxes of change, but you would check off the remainder of boxes. This ties to your emergency application. If the emergency application is relating to child custody and visitation, then you would also check off these boxes. You’d write the name of the other party.

You would actually leave this part blank if you have not gone to your emergency hearing. If you did already go to your emergency hearing, then the court will fill this out for you at the time of your emergency hearing. The reason being is that they’ve already granted you temporary emergency orders, and they’re having you come back to court a second time. That second court hearing will be listed in this box right here.

Now there is the section, the court order, and it says for court use only. So do not complete this, but I do want to alert your attention to the fact that the responsive declaration for the request for order form must be served on or before. So if your hearing is going to be a week from the time that your emergency hearing is set up, then the other party is likely to request that they’re able to prepare their responsive documents by a certain date. This is because there are laws that would require the other party to complete certain things by a certain deadline, and the other party wouldn’t be able to meet those deadlines since everything is being expedited. So keep that in mind.

The other thing as we go through and fill this out is the restraining order information. You have to notify the court of the restraining order. State who’s the petitioner, who’s the respondent, whether there’s a criminal protective order, a family court order restraining the other party or domestic violence restraining order, a juvenile restraining order, or some other type of restraining order. That can be an emergency protective order, for example.

If your request relates to child custody and visitation, make sure you include their names, their date of birth, and whether you’re requesting sole custody or joint custody, or maybe the other person should have custody. Same goes for the physical custody and a legal custody. It tells you right here that legal custody is about who decides about the health and education of your children. Physical custody is the person who the children live with – not visitation but who the child lives with or who the children live with. Same goes for legal custody.

So this is what you’re requesting. Then, the orders that you’re requesting are going to be specified on an attached form of some sort. You can just create your own or just type it in this section right here.

The form reads, “the orders that I request are in the best interest of the children, because”…then you fill this out. Since it is a temporary emergency order, this is the best place to type in the irreparable and immediate harm that would happen to your kids without the temporary emergency order being in place. If there are existing orders in effect, prior to you filling out this form, you do need to identify that. You will need to write when it the existing order was entered – that is, not the day that the court gave the order, but the day that it was filed. Then write the date that the visitation order was also filed. Then you have to specify what those orders are currently, before your request.

Requesting Child Support or Spousal Support

Now, child support. You’re not going to be really dealing with this in a ex parte or in an emergency situation. So we’re not going to review this because there is not any foreseeable circumstance where the court would grant you a temporary emergency order in a emergency basis. The same goes for spousal support. This is not an area that the court would deem to be an emergency. So you would not complete this section either.

Requesting Property Control

Then there’s something called the property control. If you are completing this form before actually having your emergency hearing, then you must check off this box right here. This is if you are requesting to have exclusive use, possession or control of a certain property that you have with the other party. This applies whether it’s a house or a lease or a car, a boat, whatever it might be, you have to list with that property is.

Then, to take it a step further, you may want the other party to make whatever payments that are due on those properties. Let’s say Wells Fargo for the mortgage amount, $3,000 due the first of the month, then you would write that. If you have already existing property orders, then you would need to check off this box and say that this is a change from the current order that was filed on whatever date.

Declaration in Support of Your Emergency Request

Then, you have to attach a declaration or an attachment stating why the court should make these changes in the property orders. State whatever is necessary. Really what the court is looking for on an emergency basis is some damage to the property that’s being caused by the other party. Make sure that that is written in there – something that would require the court to take immediate action now, today, ASAP versus a few months down the line.

Requesting Attorney’s Fees

As to attorney’s fees and costs very, very rarely will this be granted on an emergency basis. It’s actually almost never granted on an emergency basis. So we’re not going to review that section.

Requesting a Domestic Violence Order

The domestic violence order – for that to be granted on an emergency basis, that requires an agreement from the other party and you wouldn’t even be filling out this form, actually, if the court did grant it to you at the time of your hearing. If the court didn’t grant it to you at the time of your hearing, and you’re both in agreement that there’s some changes that you want to make and the court’s not granting it at your emergency hearing, then you would want to complete this section. Where you have the request for order hearing you write the date that it was filed. You should write what you want to change or why you want it to end.

This is what you’re asking the court to change and why you’re asking the court to change it or end it. If you need more space, you can just attach documents and just write the words, Attachment 7c, and attach it to this document. But very rarely will the court actually grant an ex parte relief for a domestic violence restraining order. They won’t change it just like that, especially if there’s not an agreement. The courts would prefer to deal with that on its regular calendar versus have it expedited. You would have to have a good reason as to why you need to expedite. Remember, the standard is immediate irreparable harm and the restraining order prevents immediate irreparable harm, so you would really have to have really good reasons as to why you want to change it sooner rather than later.

Requesting Other Orders

Other orders can be something such as you’re trying to sell the house ASAP because the other person’s actions, for example, are diminishing the value of the residence and you need to put this on the market ASAP. If so, you could request that. It’s unlikely that the court would see that as an emergency, but you can request it as your emergency pleading. Typically emergencies are based off of custody visitation and then some related property control there.

Time for Serving the Other Party

Time for service. If you are asking the court to give you this second hearing day, or if the court wants to establish a second hearing date, then you should complete this as well, because you’d want the court to allow you to hand deliver or deliver in some fashion to the other party, this form, especially if they don’t even show up to your emergency hearing. So if they don’t show up or if the court does make emergency orders, you want to be able to have time to give the other party the paperwork. You want to ask the court, “Give me no less than X amount of court days.” Court days are like business days almost, because the court doesn’t observe all the holidays. You would have to go on the court calendar and see what those court holidays are. That’s mainly pursuant to your local rules.

Requesting an Earlier Court Date

If you are requesting that the court have the hearing to be sooner on your request for order (and this is because you’re filing this document with your request for an emergency hearing), then you are checking off this box and you’d have to establish why you need it to be sooner.

This actually would be a good part to fill out if you are asking for the house to be sold sooner, rather than later, or the passports to be issued sooner rather than later. Using the passport example, let’s say you’ve already bought your tickets with the agreement of the other party that you were going to go on this international trip with your children and the other party said that they were going to release or renew the passports or something like that. So you were able to purchase the tickets because you had existing passports, but you need to renew them in order to travel. Now, the other party just last minute says, no, when your trip is around the corner. That’s a good reason to ask the court for some relief and to expedite that relief, especially if your trip is around the corner. That’s just one example.

Facts Supporting Temporary Emergency Orders in Family Court

As to the facts that are in support of everything that you’re requesting, it really should just be what is written on your ex parte application. What is attached to your emergency hearing application? It should mirror this. Oftentimes I would just write “see ex parte declaration in support of my ex parte application and order.” You can add that, but if you want to also have an additional attachment to this or duplicate the attachment to the declaration for the emergency hearing, you can certainly do that. Just make sure that you reference it in this box or label it Attachment 10. Make sure that you date it and you sign it and you print your name.

How a Judge Makes Temporary Emergency Orders in Family Court

That’s how you fill out the Request for Order form. Because we have this temporary emergency order check box, we have to also attach this because now we’re assuming that the court is granting our Request for the Temporary Emergency Order. If the court is granting your Request for the Temporary Emergency Order, then when you go and the court processes this document, it’s going to have a second hearing date. This date is going to mirror the date that’s also on this document right here. It says that the court hearing will be held on a Request for Order form served with this order. So these documents go hand in hand, after an emergency hearing has already been taken place, and it’s going to be for one of these issues listed above. It’s going to need to the other party.

The court is going to have to find that they need to prevent immediate loss or irreparable harm to a party or child of the case, preventing loss or damage to a party, to a property, or there is a change of procedures for hearing or trial. That’s, for example, if you wanted to reschedule a hearing on the other party is not in agreement, and they didn’t show up to that hearing and you need some interim relief, some temporary relief between now and the time that you need to notify the other party for that rescheduling. Then the court can find that that is a good reason to set an emergency hearing because your hearing is just around the corner.

The court is going to order that the temporary emergency orders are going to expire the date and the time of the hearing as scheduled, unless it’s extended by another court order.

Now if this is not a child custody and visitation emergency. then you’re not going to list anybody. If it’s just a property emergency, you’re only going to list the property on the next page.

Types of Child Custody and Visitation Temporary Emergency Orders in Family Court

Parenting Time

However, if it is a child and custody visitation request, you’re going to list the name and date of birth and then the court will fill out whether it is giving you temporary physical custody of the children or who it’s giving temporary physical custody to. For parenting time, the court is going to specify the parenting time and make that an emergency order.

Travel Restrictions

If there’s any travel restrictions, then the court is going to restrict the other party from removing the children from the state of California (unless there is another order still specifying otherwise.) So they will not be able to leave the state of California. You can take it a step further and say that they can’t remove him from the county in which the children reside, or they can’t even leave the country. So it depends, being that we’re so close to Mexico, maybe that’s something that would be, you know, written in here too.

Child Abduction Prevention Orders

As to child abduction prevention orders, those also can be something that the court orders and it says to check out FL-341(b), but for today’s purposes, that’s what you would need to fill out so that the court can attach it to these temporary emergency orders.

Universal Findings

The court has to make what we call Family Code 3048 findings. What that means is the court has jurisdiction to make orders, it gave the other party, the notice and opportunity to be heard, and that the United States is the country of residence, and that if you or the other person violate this order, then you will be subject to civil or criminal penalties, or both.

Property Control: Temporary Emergency Orders in Family Court

For property control, the court can give temporary use and possession and control of that property, and basically mirror the information that you’ve requested in your declaration for the emergency hearing.

All Other Orders Remain in Effect

Then, all other orders not in conflict with these orders will remain in full force and effect. It’s a very general statement. Basically, if the court has made any other orders, then those orders will also remain in effect so long as they don’t conflict with these orders and then any other orders the court wants to make. So let’s say for child custody and visitation, maybe the court wants to send the parties to a mediation from the courthouse to help out with this particular matter and perhaps would set one up in the future or ask the other party to file something before they come into the next hearing.

Deciding What Forms to Use for Your Temporary Emergency Orders in Family Court

The judge would then sign this. These are three forms that you can complete as part of your Request for Emergency Temporary Orders. You could either complete these before your hearing and just submit them with your emergency application, or if you wait for the day of your hearing and you decide to complete it right then and there and the court can take those documents from you and sign off on the paperwork.

If you are specifically requesting child custody and visitation, then it’s best practice to complete the FL-300 as well as the FL-305. If it’s a property as well, it’s a best practice to complete these forms as well, along with your emergency application. For requests on any other types of issues, I think the ex parte application and order is sufficient. You wouldn’t need anything more than that, and these are not mandatory forms, but they are definitely again, best practice especially in those circumstances.

We hope that you have found this helpful and thank you for your time.

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