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familylove267 · Jun 19, 2009, 04:31 PM

I am trying to make sure I have all the correct forms and they are filled out properly. I need to file to get an ex-parte hearing. The reason: my daughters mother is planning on leaving the state of CA very, very soon. I do not have primary custody. I would like to keep the mother from being able to leave with my daughter and get a 50/50 joint custody order. I have filled out the following forms: FL-300, FL-310, included FL-320,MC-030, FL-311,FL-312. I am not sure how to correctly fill out form FL-300 to get an ex-parte hearing, specifically question #3. This is in the county of El Dorado. Also, am I missing any other important document?

ScottGem · Jun 19, 2009, 04:49 PM

Why do you think you need an ex-parte hearing? Is there a visitation and custody order already in place?

familylove267 · Jun 19, 2009, 05:00 PM

Originally Posted by ScottGem

Why do you think you need an ex-parte hearing? Is there a visitation and custody order already in place?

There is an old order from 2001. The problem is the mother just plain hates me and said this in front of my daughter, who is 13. I maintained most of my contact with my daughter through my mother and sister. My daughters mom has always denied me a chance to see her. Now she won't let any of my family see my daughter and she won't let anyone know where my daughter is. Every phone call we make, she hangs up.

cdad · Jun 19, 2009, 06:08 PM

What does the old order say about custody ? Its very hard to answer your question when we need more info .

ScottGem · Jun 19, 2009, 07:32 PM

If there is an existing order, then enforce it!! File a petition in Family Court that the mother be cited for contempt of court for failure to obey a court order.

You should have done this the first time she refused to let you have your court ordered visitation.

familylove267 · Jun 20, 2009, 07:56 PM

Originally Posted by califdadof3

What does the old order say about custody ? Its very hard to answer your question when we need more info .

Legal custody is shared. Mother has primary physical custody. The mother does not uphold the order which is 8 years old. I just don't want her to leave the state with my daughter.

cadillac59 · Jun 20, 2009, 11:45 PM

Originally Posted by familylove267

I am trying to make sure I have all the correct forms and they are filled out properly. I need to file to get an ex-parte hearing. The reason: my daughters mother is planning on leaving the state of CA very, very soon. I do not have primary custody. I would like to keep the mother from being able to leave with my daughter and get a 50/50 joint custody order. I have filled out the following forms: FL-300, FL-310, included FL-320,MC-030, FL-311,FL-312. I am not sure how to correctly fill out form FL-300 to get an ex-parte hearing, specifically question #3. This is in the county of El Dorado. Also, am I missing any other important document?

Be sure to read the El Dorado County Local Rules pertaining to ex partes; the procedure for getting them set varies a little from county to county.

Also, instead of reciting the form number, use the name of the form. I can never remember what number goes with which form and I don't have the time to check which number is what.

Typically what you need is the OSC form, the Application for Order and Supporting Declaration, with is the attachment to the OSC, and a Declaration re Notice Upon Ex Parte Application for Orders (this is a local form that can vary from county to county--look at El Dorado's court website and see if they have this or something similar in their directory of local forms).

Tell us the names of the forms you've listed and I'll tell you if you need them.

cadillac59 · Jun 21, 2009, 12:11 AM

Never mind what I said about telling us what form number goes with what. I just checked it out.

FL300 is the OSC form, which you need. Forget about para.3, leave it blank. Fill out FL310, that's the application for order and supporting declaration, you need that. Attach your existing custody orders from 2001 and check off the modification box on the OSC-- you want to modify the existing orders-, write in "Enjoin Move-Away" under the "Other" box, which you check off, and check off the child custody and visitation boxes as well to show that is what you are modifying (be sure to say in your declaration that she plans on moving, she's been violating the orders and you want custody if she moves, or you want her enjoined from moving and you need the case set for hearing).

You don't need FL-320,MC-030, or FL-311 (why in the world did you think you needed FL320? that's for the other side to fill out and file, not you). I like FL312, so attach it. It's says it's for mandatory use but I think this is wrong. You don't have to use it if you don't want to but it since it serves your purpose here to stop the move away, fill it out and attach it.

Again, as I said, check with the clerks about how to have the ex parte set. You will also need the Decl. re. Notice upon Ex Parte Orders, or whatever El Dorado calls their form. And may need to give the mom 24 hours notice of your intent to appear ex parte (you might get around this on the Decl. re Ex Parte Orders if you are afraid she'll run once you give her notice).

That's about it. See if the clerks will help walk you through the procedure and if they won't help much go to their facilitator's office (if you are in Placerville the clerks are all pretty nice up there and will probably be fairly accommodating).

Fr_Chuck · Jun 21, 2009, 12:08 PM

And the judge may not even allow or want this type of meeting,

I don't understand why you are not merely filing an emergancy hearing of your existing court order

And you will need to be filing all of this in the county where the original court order is at.

So it is "old" it is still in force even if no one has been following it.

So you don't get any new custody orders, you get the old one enforced or at least modified.

ScottGem · Jun 21, 2009, 12:28 PM

I agree with Chuck (and said so back in post #5.

Forget the fancy legal stuff. You have an existing order, go to court to enforce it. Ask for an emergency hearing to get an injunction preventing her from moving.

cadillac59 · Jun 21, 2009, 12:39 PM

Originally Posted by Fr_Chuck

And the judge may not even allow or want this type of meeting,

I don't understand why you are not merely filing an emergancy hearing of your existing court order

And you wil need to be filing all of this in the county where the orginal court order is at.

So it is "old" it is still in force even if no one has been following it.

So you don't get any new custody orders, you get the old one enforced or at least modified.

Sorry guys, I have to disagree. A violation of a court order is not an emergency justifying an ex parte, not in most cases (sure, if a mom is under an order not to leave the state with the kid and does anyway, you can get an ex parte; but you don't have to wait for that to happen to get one). An OSC re: contempt is not going to be gotten on an ex parte basis. To get one of those you have to file an OSC;it goes to a judge for review (the clerks cannot issue them), then it has to be personally served on the adverse party and set for arraignment. You have to have each count set forth in detail of each violation. They are three or four times the work of a simply ex parte like this guy needs.

Now, a threatened or actual unauthorized move away with a kid is always an emergency justifying an ex parte, and you always ask for a change of custody as part of it: you say, either enjoin the move until the matter can be set for trial or, in the alternative, allow mom to move without the child and custody changes to dad. That's how you do it. Been there done it, and you'd be laughed at trying to do it any other way.

ScottGem · Jun 21, 2009, 02:08 PM

Originally Posted by cadillac59

Now, a threatened or actual unauthorized move away with a kid is always an emergency justifying an ex parte, and you always ask for a change of custody as part of it: you say, either enjoin the move until the matter can be set for trial or, in the alternative, allow mom to move without the child and custody changes to dad. That's how you do it. Been there done it, and you'd be laughed at trying to do it any other way.

That's they way I envisioned it. My only question is whether it has to be an ex parte? Can't an emergency hearing be requested without it being ex parte?

cadillac59 · Jun 21, 2009, 04:23 PM

Originally Posted by ScottGem

That's they way I envisioned it. My only question is whether it has to be an ex parte? Can't an emergency hearing be requested without it being ex parte?

An ex parte is an emergency hearing. They require the showing of some emergency to be granted, but people try to use them for almost anything simply to jump to the head of the line when it comes to having a hearing set. Judges don't like it when they do.

The idea of an ex parte, hence the term, is that they are either granted on no notice to the other side or shorter-than-otherwise-required notice. A classic ex parte request is for a restraining order where the protected party is afraid if she gives notice the other side will retaliate and commit more acts of violence before the restraining order is even granted. So, there's a need to spring it on the restrained party for safety's sake.

Typically, ex parte's require at least 24 hours notice to the other side, often by way of a simple phone call, or a fax explaining what is going on and when and where to show up. Again, notice can be dispensed with if a proper showing of good cause is made (as in the restraining order example).