BILL ANALYSIS �
AB 225
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 225 (Nielsen) - As Amended: March 25, 2011
SUBJECT : Child custody: EX Parte ORDERS
KEY ISSUE : EXCEPT FOR EXCEPTIONAL CIRCUMSTANCES, SHOULD A PARTY
SEEKING AN EX PARTE CHILD CUSTODY ORDER TO PROTECT A CHILD FROM
HARM BE REQUIRED TO PROVIDE ADVANCE NOTICE TO THE OTHER PARTY?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Under current law, courts are generally prohibited from granting
or modifying a custody order on an ex parte or emergency basis.
However, the court may proceed on an ex parte basis if there has
been a showing of immediate harm to the child or immediate risk
that the child will be removed from the state. These orders can
be warranted when, for example, a parent with visitation has
threatened to take the child outside California, in particular
to a country that will not recognize a California custody order.
This bill seeks to ensure that the other party has notice of the
request for the emergency order, unless doing so is not
appropriate. The bill follows the existing requirements for
regular civil orders, requiring that the party seeking the ex
parte order provide notice to all other parties by the court day
before the hearing, absent exceptional circumstances. However,
the bill rightly provides for notice to be shortened or even
waived in exceptional situations, as is permitted in the general
civil arena. The bill is supported by Crime Victims United.
The Association of Family Conciliation Courts opposes the bill
because they believe it is unnecessary since the Judicial
Council is currently considering drafting a rule in this area.
SUMMARY : Requires specified notice before a court can make an
ex parte child custody order based on immediate harm to the
child or immediate risk that the child will be removed from
California, except as provided. Specifically, this bill :
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1)Requires a party seeking an ex parte child custody order based
on immediate harm to the child or immediate risk that the
child will be removed from California to notify all parties
or, if represented by counsel, their attorneys at least one
court day before the matter is to be heard, unless:
a) The party requests shorter notice and there are
exceptional circumstances that justify shorter notice. The
requesting party must provide facts in a declaration that
show exceptional circumstances that justify the shorter
notice; or
b) The party requests a waiver of the notice because giving
notice would result in immediate and irreparable harm to
the party or the children who may be affected by the order
sought. The requesting party must provide facts in a
declaration that show immediate and irreparable harm to the
party or the children who may be affected by the order
sought that justify the waiver of notice.
2)Requires the Judicial Council, by January 1, 2012, to adopt a
rule of court to implement #1, above.
EXISTING LAW provides that a court shall refrain from making an
order granting or modifying a custody order on an ex parte
basis, unless there has been a showing of immediate risk that
the child will be removed from the State of California, or a
showing of immediate harm to the child. Defines "immediate harm
to the child" to include having a parent who has committed acts
of domestic violence or sexual abuse of the child, where the
court determines that the acts of domestic violence sexual abuse
are of recent origin or are part of a demonstrated and
continuing pattern of abuse. (Family Code Section 3064.)
COMMENTS : An ex parte order generally refers to an order
granted at the request of one party, without the other parties
to the action present. Ex parte orders are an exception to the
basic rule of court procedure that both parties must be present
at any argument before the court. Ex parte matters are
temporary orders pending a formal hearing and generally only
ordered if quick action, sometimes without notice to the other
party, is required in a given situation.
Under current law, courts are generally prohibited from granting
or modifying a custody order on an ex parte basis. However, the
court may proceed on an ex parte basis if there has been a
AB 225
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showing of immediate harm to the child or immediate risk that
the child will be removed from the state. These orders can be
warranted when, for example, a parent with visitation has
threatened to take the child outside California, in particular
to a country that will not recognize California's custody
orders. In this case, the court may need to act quickly,
without giving the other parent notice, in order to prevent
removal of the child from the state.
This bill seeks to ensure that the other party has notice of the
request for an emergency order, unless doing so is not
appropriate. The bill follows the existing requirements for
regular civil cases, which require that the party seeking the ex
parte order provide notice to all other parties by 10:00 the
court day before the hearing, absent exceptional circumstances.
(See Rule of Court 3.1203 et seq.) Thus, as a general rule, all
parties should receive notice of the ex parte hearing.
However, the bill rightly provides for notice to be shortened or
even waived in exceptional situations, as is permitted in the
general civil arena. In the child custody area, exceptional
circumstances can include situation where giving notice would
cause a parent to immediately flee the state with the child or
the child to suffer irreparable harm. Notice in these
situations could well result in significant harm to the child.
The bill also requires that Judicial Council adopt a rule to
implement the notice requirement. Committee staff has been
informed that the Judicial Council is currently working on a
similar rule and, at this point, should have no difficulty in
meeting the January 1, 2012 deadline for adoption of the rule.
Previous related legislation : AB 375 (Nielsen), 2009, would
have prohibited courts from granting ex parte orders in certain
child custody cases. That bill passed the Assembly, but was not
moved in the Senate.
AB 2960 (La Malfa), Chap. 64, Stats. 2008, ensured that custody
orders can be changed quickly when there is a showing of sexual
abuse of the child by clarifying that a court can change a
custody order on an ex parte basis when a child is the victim of
sexual abuse.
ARGUMENTS IN OPPOSITION : The Association of Family Conciliation
Courts (AFCC) opposes the bill because it believes the bill is
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unnecessary since the Judicial Council is currently considering
drafting a rule in this area. However, the Judicial Council is
not currently required to do such a rule and may choose not to
codify such a rule. AFCC also believes that the one-day notice
requirement in the bill "is vague and will only lead to more
problems and abuse of this process." However, this bill
specifically does not seek to address all issues, but instead,
and appropriately, directs the Judicial Council to craft a rule
that should be neither vague nor confusing.
REGISTERED SUPPORT / OPPOSITION :
Support
Crime Victims United of California
Opposition (to current version of the bill) :
Association of Family Conciliation Courts
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334