BILL ANALYSIS �
AB 225
Page 1
ASSEMBLY THIRD READING
AB 225 (Nielsen)
As Amended March 25, 2011
Majority vote
JUDICIARY 10-0 APPROPRIATIONS 17-0
-----------------------------------------------------------------
|Ayes:|Feuer, Wagner, Atkins, |Ayes:|Fuentes, Harkey, |
| |Dickinson, Silva, Huber, | |Blumenfield, Bradford, |
| |Huffman, Jones, Monning, | |Charles Calderon, Campos, |
| |Wieckowski | |Davis, Donnelly, Gatto, |
| | | |Hall, Hill, Lara, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
|-----+--------------------------+-----+--------------------------|
| | | | |
-----------------------------------------------------------------
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 :
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 (JC), by January 1, 2012, to
AB 225
Page 2
adopt a rule of court to implement 1) above.
EXISTING LAW :
1)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.
2)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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis, costs associated with this legislation would
be minor and absorbable within existing resources.
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
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
AB 225
Page 3
regular civil cases, which require that the party seeking the ex
parte order provide notice to all other parties by 10 a.m. the
court day before the hearing, absent exceptional circumstances.
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 JC adopt a rule to implement the
notice requirement. Assembly Judiciary Committee staff has been
informed that the JC 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0000628