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And Visitation Attorney |
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Temporary Child Custody
& Visitation Orders - General Concepts
During the pendency of a proceeding where the custody of a
minor child is in issue (including domestic relations status
actions, Ca Fam § 3120 actions for exclusive custody, DVPA
actions provided a parent-child relationship has been established,
UPA actions and Ca Fam § 17404 county agency support enforcement
actions), the court may make whatever temporary custody order
"seems necessary or proper." [Ca Fam §§
2045(b), 2047, 3021, 3022, 3060 et seq., 6323(a)]
All custody adjudications are subject to uniform statutory
standards rooted in the child's best interests, with the primary
concern being the child's health, safety and welfare. [See Ca
Fam §§ 3011, 3020, 6223] For an extensive discussion
of these standards, click
here see our page on perminent child custody orders.
The court may also issue a temporary order determining the
right of a party to visit a minor child "on the conditions
the court determines." [Ca Fam §§ 2045(b), 2047,
6323(a)(1)]
Click
here for a discussion of the standards used by the court
to make child visitation orders.
Issuance Of Temporary
Child Custody Or Child Visitation Orders On Ex Parte Application
Temporary custody/visitation orders may be issued ex parte
(Ca Fam §§ 2045(b), 6323) or after notice and hearing
(Ca Fam §§ 2047, 6340(a)). The "ex parte"
procedure allows for a hearing to be held within 24 hours of
oral notice of the hearing to the opposing party.
However, an order granting (or modifying) custody or visitation
cannot issue on an ex parte basis unless there has been a showing
of immediate harm to the child or immediate risk the child will
be removed from the state. [Ca Fam § 3064; Ca Fam §
6323(a) (incorporating by reference § 3064 limitation on
ex parte visitation orders)]
For purposes of § 3064, "immediate harm to the child"
includes a parent's acts of "domestic violence" (any
act of domestic "abuse" as defined by the DVPA) found
to be of "recent origin" or "part of a demonstrated
and continuing pattern of acts of domestic violence." [Ca
Fam § 3064]
Further, in conjunction with any ex parte custody order, the
court must enter an order restraining the person receiving custody
from removing the child from the state pending notice and a
hearing on the custody order. [Ca Fam § 3063]
Ex Parte Orders Valid
Only For 20 Days
Any ex parte order governed by the Family Code, ex parte child
custody orders ordinarily must be returned for OSC hearing within
20 days (Ca Fam § 242). If the responding party does not
appear or respond within the time set, the temporary custody
order "may be extended as necessary, pending the termination
of the proceedings." [Ca Fam § 3062(a)]
Exception - 90 Day Extension: If, despite
good faith efforts, service of the ex parte order and OSC
cannot be effected in a timely fashion and there is reason
to believe, based on petitioner's affidavit or declaration
under penalty of perjury, that respondent has possession of
the children and is either avoiding the court's jurisdiction
or is concealing the children's whereabouts, the OSC hearing
may be reset and the ex parte order extended up to an additional
90 days. [Ca Fam § 3062(b)]
Fees & Costs:
| Attorney
Fees: |
$250 per hour with a minimum
fee varying with the size and complexity of the case. |
| Costs: |
Initial filing fee approximately $300.
Other fees which may or not be necessary in your particular
case are: motion fees, fees for service of process, deposition
fees. |
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