BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 225 (Nielsen)
As Amended March 25, 2011
Hearing Date: June 21, 2011
Fiscal: Yes
Urgency: No
EDO
SUBJECT
Child Custody: Ex Parte Orders
DESCRIPTION
Existing law allows the court to grant or modify a child custody
order on an ex parte basis only if there has been a showing of
immediate harm to the child, as defined, or an immediate risk
that the child will be removed from the State of California.
This bill would expressly require that the party seeking the
order provide one day notice to all parties, unless the facts
would justify a shorter notice period or a waiver of notice.
This bill would require the Judicial Council of California to
adopt a rule of court implementing the above changes by January
1, 2012.
BACKGROUND
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 usually
temporary orders pending a formal hearing.
Under current law, courts are generally prohibited from granting
or modifying a child 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. "Immediate harm
to the child" includes having a parent who has committed acts of
domestic violence that are determined to be of recent origin or
are part of a continuing pattern of acts of domestic violence.
(more)
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In 2008, AB 2960 (La Malfa, Chapter 54, Statutes of 2008)
expanded the definition of "immediate harm to the child" to
include sexual abuse of the child, where the court determines
that the acts of sexual abuse are of recent origin or are a part
of a demonstrated and continuing pattern of acts of sexual
abuse.
This bill would require a party seeking an ex parte child
custody order to notify all parties at least one court day
before the hearing unless the requirement is waived, or
shortened due to exceptional circumstances. This bill would
require Judicial Council to adopt a rule of court implementing
this change by January 1, 2012. As noted in more detail below,
Judicial Council is currently considering a rule in this area
and the proposal is out for public comment. The public comment
period does not conclude until June 30, 2011.
CHANGES TO EXISTING LAW
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. (Fam. Code Sec.
3064(a).)
Existing law defines "immediate harm to the child" to include:
having a parent who has committed acts of domestic violence,
where the court determines that the acts of domestic violence
are of recent origin or are a part of a demonstrated and
continuing pattern; and
sexual abuse of a child, where the court determines that the
acts of sexual abuse are of recent origin or are a part of a
demonstrated and continuing pattern of acts of sexual abuse.
(Fam. Code Sec. 3064(b).)
Existing rules of court provide that the party seeking an ex
parte order in a civil court proceeding must provide notice to
all other parties by 10:00 a.m. the court day before the
hearing, absent exceptional circumstances. (Cal. Rule of Court
3.1203.)
Existing rules of court provide that all provisions of law
applicable to civil actions generally apply to a proceeding
under the Family Code if they would otherwise apply to such
proceeding. (Cal. Rule of Court 5.21.)
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Existing rules of court provide that the rules in this civil
code division apply to proceedings in civil law and motion, as
defined, and to discovery proceedings in family law and probate.
(Cal. Rule of Court 3.1100.)
Existing rules of court define civil law and motion to include
any proceedings before trial for an order, except for causes
arising under the Welfare and Institutions Code, the Probate
Code, the Family Code, or select provisions of the Code of Civil
Procedure. (Cal. Rule of Court 3.1103.)
This bill would require that a party seeking an ex parte order
notify all parties at least one court day before the matter is
to be heard. This bill would allow for an exception to this
requirement for either of the following situations:
the party seeking the order provides facts that show
exceptional circumstances that would justify shorter notice;
or
the party seeking the order provides facts showing that
immediate and irreparable harm to the party or child would
result unless the notice requirement is waived.
This bill would require the Judicial Council of California to
adopt a rule of court to implement this notice requirement by
January 1, 2012.
COMMENT
1. Stated need for the bill
The author writes:
Ex parte orders are an expediency that are used by courts to
ensure certain things take place in a more timely way than
could be accomplished through a full court hearing. However,
when changes to custody orders are made, and especially when
those changes are favoring an individual accused of ongoing
crimes of sexual abuse or domestic violence against those
children that are the focus of the order, then an ex parte
order is not the appropriate venue for those custody changes.
In other cases, one side may not be notified about an ex parte
hearing until after the fact.
Current law allows for ex parte orders to change custody
agreements in limited situations. However, in situations
where the well-being of a child is in jeopardy, it is
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essential that a full hearing be required in order to make an
accurate determination of the risk, rather than by ex parte
order, and both sides be given adequate notice that a hearing
is forthcoming.
�This bill] will change current law to state that a party
requesting an ex parte hearing give both sides at least 24
hour notice of a hearing, with narrow exceptions, so that both
sides can be present. Each side should be able to present
evidence of whether or not this is an appropriate change to
make and why or why not. Sexual abusers and domestic abusers
should not be able to use an ex parte hearing to gain custody
of a child, and �this bill] will close that loophole in
current law.
2. This bill is arguably premature and unnecessary as Judicial
Council has proposed a rule in this area that is currently out
for public comment
Under existing law, the California Rules of Court provide that
notice must be given to all parties for an ex parte proceeding
in civil court by 10:00 a.m. the day before the hearing, unless
exceptional circumstances exist. There is some confusion as to
whether this rule also applies in a family law proceeding
involving an ex parte order. Under the family code provisions,
the California Rules of Court provide that "all provisions of
law applicable to civil actions generally apply to a proceeding
under the Family Code if they would otherwise apply to such
proceeding." However, under the civil code provisions, the
California Rules of Court provide that "the rules in this
division apply to proceedings in civil law and motion and to
discovery proceedings in family law and probate." (Cal. Rule of
Court 3.1100.) Civil law and motion is defined to include "any
proceeding before trial for an order, except for causes arising
under the Family Code." (Cal. Rule of Court 3.1103.) It is not
clear what, if any notice is required for an ex parte child
custody order under the Family Code. Based on this confusion,
Judicial Council has proposed a rule in this area and has
circulated that rule for public comment (See
http://courts.ca.gov/SPR11-36.pdf .)
Despite that pending rule, this bill would codify notification
requirements for ex parte child custody orders that are arguably
inconsistent with the proposed Judicial Council language. The
Judicial Council is currently collecting comments on that
proposed rule, and the public comment period is scheduled to
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close June 30, 2011. Judicial Council follows a thorough
process when adopting new rules of court. After the public
comment period has ended, Judicial Council will review the
public comments, and make any revisions based on the comments.
The revised proposal will then be brought back to the Rules and
Projects Committee which could make additional changes. Once
the committee approves the proposed rule, it will be brought to
the full Judicial Council for adoption. By codifying specific
notice requirements that are arguably inconsistent with the
current proposed rule, this bill would act to interfere with the
pending rulemaking process.
Specifically, this bill would expressly provide in statute that
notice be provided to all parties one day prior to the ex parte
proceeding, unless circumstances arise that would justify a
shorter notice period or a waiver of notice altogether. This
bill would require Judicial Council to adopt a rule of court by
January 1, 2012, that would implement this provision. Although
there are other inconsistencies, the most significant difference
between this bill and the proposed rule, as it currently reads,
is that the proposed rule provides the court with greater
discretion than provided by this bill when determining whether a
total waiver of notice is appropriate. This bill would only
allow a court to determine whether a waiver of notice altogether
is appropriate based on an allegation of immediate or
irreparable harm to the child or party. The proposed rule would
allow a judicial officer to approve a waiver of notice for good
cause, which may include that "giving notice would frustrate the
purpose of the order" or a showing of immediate or irreparable
harm to the child or party.
Since the public comment period has not closed yet and a final
rule has not yet been adopted, this bill is arguably premature
as it does not allow Judicial Council to complete its process
for evaluating any new rules of court. It is for these reasons
that the California Judges Association (CJA) has suggested that
this bill be tabled until the Judicial Council process is
concluded. To ensure that the Judicial Council has sufficient
latitude to respond to valid comments submitted to its proposed
rule, the Committee should consider holding this measure until
the Judicial Council process has concluded.
SHOULD THE LEGISLATURE INTERFERE WITH THE PUBLIC COMMENT PERIOD
AND INVALIDATE THE COMMENTS SUBMITTED IN RESPONSE TO THE
APPROPRIATE NOTICE OF AN EX PARTE CUSTODY ORDER?
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SHOULD THE JUDICIAL COUNCIL PROCESS FOR ADOPTION OF A RULE OF
COURT CONCLUDE BEFORE THE LEGISLATURE ENACTS A BILL COVERING THE
SAME ISSUE?
3. This bill would arguably undermine the notion of a public
comment period
The purpose of circulating proposals for new rules of court is
to engage the public and any stakeholders in the process. Since
the public and stakeholders may be directly impacted by any new
rule of court, it is important to receive feedback and consider
any possible issues that may arise after adoption of the rule.
The public comment period for new rules also will become a part
of the public record. This bill would arguably undermine the
need for the public to comment on the rule proposal.
For these reasons, and the reasons stated above, the Committee
may wish to hold this bill to allow the Judicial Council to
complete its process for evaluating this rule of court.
DOES THIS BILL UNDERMINE THE PUBLIC COMMENT PERIOD CURRENTLY
PROVIDED FOR BY THE JUDICIAL COUNCIL'S PROPOSED RULE?
4. Opposition's concerns:
The Association of Family and Conciliation Courts (AFCC) in
opposition to the bill writes, "this latest version . . .
attempts to deal with how and when notice for any ex parte
hearings is given. This is also unnecessary since there
currently exists a Rule of Court (3.1204) which does that and
also because, as you have evidently been made aware, the
Judicial Council is already drafting a proposed Rule for Family
Law on this very issue!" The AFCC continues with, "the language
provided in the bill ("one day" notice) is vague and will only
lead to more problems and abuse of this process."
In response to the AFCC, the author's office writes, "while we
respect the Opposition, Assemblyman Nielsen feels that with the
current abuse of ex parte orders, a one court day notice is an
appropriate route, so that both sides are aware of what is
occurring, and both sides can be heard in an open courtroom."
Support : Crime Victims United of California
Opposition : Association of Family Conciliation Courts
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HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 375 (Nielsen) would have required that certain factors be met
in order for a court to modify a child custody order on an ex
parte basis. This bill was referred to the Senate Committee on
Judiciary, but was never heard.
AB 2960 (La Malfa, Chapter 54, Statutes of 2008) See Background.
AB 2650 (Speier, Chapter 162, Statutes of 1992) authorized ex
parte orders where there's a showing of domestic violence, and
reorganized the statutes relating to child, family, and human
relations into a single Family Code as recommended by the
California Law Revision Commission.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
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