In a family law proceeding, one of the most sensitive and emotionally charged areas –for both the family law attorney and the client- typically concerns issues surrounding custody and visitation of the children.
Because the two parents are now adversaries, seemingly innocuous issues (for example, the completion of the child’s homework) may be blown out of proportion. This can lead to a bigger dispute that may impact the parent’s visitation with the child, or even draw into question the fitness of the parent.
For parties in a family law proceeding where children are involved, all issues may seem like emergencies. As a result, the family law attorney is often faced with the difficult task of balancing the client’s interests, as well as their serious concerns regarding the actions of the other parent, within the boundaries and restrictions of the Family Code.
An emergency custody or visitation order that modifies or grants custody to another parent is called an ex parte custody or visitation order. Notice to the other parental party must be given by 10:00 a.m. the day prior to the hearing, and the normal rules governing the timing of the service of the court pleadings are essentially waived in the wake of the emergency.
The only basis to seek ex parte relief for custody or visitation matters is that there is either immediate harm being done to the child, or there exists an immediate risk that the child will be removed from the state.
Immediate harm to a child includes having a parent who has committed acts of domestic violence or sexual abuse toward the child, where the court determines that those acts are recent or are part of a demonstrated and continued pattern of violence or sexual abuse. Immediate harm to the child also includes a parent’s failure to adequately supervise the child – for example, a court held that a mother left her four year old alone while she went to the store, may qualify as the kind of immediate harm to the child that warrants an ex parte change of custody.
Ex parte custody and visitation orders are rarely granted by the family law court except in the most urgent circumstances of imminent child endangerment, or, the risk that the other parent will abscond with the child from the state.
The Delicate Balance
Thus, a family law attorney, while desiring to provide the right relief and service to their client, must carefully assess the custody and or visitation situation to determine whether ex parte relief is truly necessary. Attempting to seek an ex parte custody or visitation order might initially quell a client’s nerves and temporarily promise a sense of relief. However, the family law attorney must be upfront and candid with the client about whether the particular custody or visitation issue really constitutes an emergency, or if it would be better handled as a duly noticed motion on the court’s regular calendar. Strong advocacy must be balanced by prudent legal practice regarding the limitations of the law and the courts.
While custody and visitation matters are usually emotionally charged and sensitive matters, it is important to recognize that emergency court orders granting or modifying custody or visitation will only occur in the the most serious, and imminently harmful matters affecting a child.