Making Request in Family Court and Temporary Court Orders
by Allysyn Overton, Esq.
When a married
couple, or unmarried couple with children, decides to separate, the couple has many
issues that must be decided. Family
court decisions often take months or sometimes even years. Some issues are heard
on an emergency basis, such as domestic violence, or situations where the child(ren)
could be at risk of harm. Property issues are usually the ones that are decided
last, whereas, domestic violence, child custody and visitation, and child and
spousal support are usually handled as soon as the court can hear them. Most of
the time these orders are temporary orders until the final divorce judgment. At
the time of issuing that, the court can change those earlier-decided, temporary
orders, or keep them the same and incorporate them into the final judgment. Any
post-judgment modifications to that judgment must be heard, after the other
party is served personally, rather than electronically or by mail.
Sometimes, a
party can request a temporary emergency order before divorce papers are even filed. The hearing will then be scheduled within
days or weeks, depending on the nature of the request, and what is at stake. These orders are called “temporary orders” and
remain in effect until the court can make orders on formal divorce proceedings,
or until the parties agree through mediation or negotiations. Although these
orders are only temporary, courts often do consider them when making more
permanent, formal court decisions, especially in cases of child custody and
visitation or spousal support. If you are going to a hearing for a temporary order,
be sure you are very organized and ready, as they are often short and will go
by quite quickly. If you have your thoughts and arguments well-organized and
outlined on notes for yourself, this will make your job much easier when under
the short-time limitations.
Remember
that all of the decisions made through temporary orders are not permanent. They
are all only temporary, and subject to change. They are intended to maintain
the family’s security and circumstances until more formal and steadfast family
court decisions can be made.
Importance of Temporary Orders for Child Custody
If you are
one of the many lucky people who are able to agree on child custody and
visitation issues with your former partner, that is great, and will likely save
you time, stress, hassle, and money. If you do reach an agreement at some
point, be sure to get it in writing, and have both parties sign it, so the
court knows that it is your true agreement, and so that it can be enforced if
the other party tries violating it.
If you and
your partner, like many others, cannot agree on these issues, don’t feel bad,
seek the court’s help, as that is what it’s there for. Absent an emergency,
like risk of physical harm, hearings for requests of orders like child custody are
usually scheduled between six weeks and four months from the time you file.
Without a court order, you have no way of enforcing any agreement or arrangement
made with the other parent. This would allow the other parent to file false kidnapping
charges against you, or take the child(ren) and not return them without a court
order. This also means that you cannot call the police to help you enforce the
order. With a court order, if the other parent violates the arrangement by not giving
you the child(ren) at the right time, you can call a local police department and
show them the order you want help enforcing. The police can then go to the
other parent’s home and demand he/she/they follow the order and hand over the
child(ren). So, request a court order as soon as possible. In CA, the form for
doing this is called a “request for order” and is form number FL-300. However,
if you’re not married, you’ll first need to establish Parentage, so other forms
are required first. Most courts in California have a self-help center that will
help you fill out your forms if you don’t have a lawyer. They cannot give you
legal advice, but they can show you what forms you need for what purpose and how
to fill them out and file them. If you file for custody and your spouse files a
claim of kidnapping against you, the judge will see your custody request and
the kidnapping claim can be dropped.
The
following are common requirements for filing a request for a an order in family court.
A proof of service document. Have someone over 18, who is not a party in the case serve all of your pleadings as well as a blank response form, usually fl-320 in most cases. Then, that person should sign a proof of service, detailing the documents he/she/they served, the address, date, time, and way (personally, electronically, or by mail) in which they served, and then sign the bottom. If the court does not have this document, it cannot hear your matter, and will likely continue the hearing until such time as the other party is served. The documents need to be served at least 16 court days before the hearing. If you are unable to serve in time, don’t worry. Simply let the judge know and he/she/they should have no problem continuing (rescheduling) your matter. If you have questions about how to do this, or are worried you won’t be able to do it properly, you can hire a process server to handle this for you. Just google one near you, and go with the one you like. The process server will file the proof of service for you. If you are having trouble serving or even finding the other party for service, see my article on Residency in Divorce FAQs, which explains service by publication or posting.
At the Temporary Order Hearing
The hearing
is the place for the judge to
Often times
your temporary order hearing will be sent to mediation or what is called
“probation.” Both of these present an
opportunity for the parties to negotiate with a trained mediator or settlement
master appointed or hired by the court, before the parties go before the judge.
In California, mediation before a court hearing is mandatory. This saves the
court time and allows more time to work out the conflicts. Some courts are what is called “recommending
counties.” This means that after mediation, the mediator can report back to the
judge what happened and make recommendations to the judge on the orders
he/she/they think appropriate based on what was revealed in mediation. So, it
is important to be kind, civil, and respectful, but also firm on your concerns
or facts during your session. If you would not say something to the judge, you
probably should not say it to your settlement master or mediator.
The issues
that cannot be resolved in mediation probation are presented to the judge. The hearing is usually only twenty minutes,
fifteen in some counties, long. The judge will listen to both sides and the
declarations of any witnesses. Be sure to speak slowly and clearly, and do not
interrupt the clerk, judge, the other party/attorney, or any witnesses. Some
judges only accept written evidence. Usually, the judge will make an order at
the end of your hearing, but sometimes the judge needs more time to consider
your matter, or wants to revisit some piece of evidence. When this happens, the
judge will usually write the order and then mail it to the parties. If your issue
is time-sensitive or an emergency, the judge will likely make the orders at the
end of the hearing.
Any requests
for child support, whether temporary or not, require both parties submit a declaration
of income and expenses. In California, this form is FL-150. You are required to
attach two months of proof of income, such as a paystub or profit and loss
statement to this income and expense declaration. Again, be sure to be honest
and do not underreport your income or overreport your expenses. If you do this,
the court will assume you are getting the extra income from some other source,
and can impute the difference to you as income.
Sometimes,
the judge decides that more information is needed to make an appropriate
decision or that the other party was not given appropriate notice before the
hearing. In these cases, the judge might
make a decision that is only effective until another temporary order can be
held.
The temporary order includes any agreements the parties were able to make before the hearing, including agreements made in mediation or probation. If the parties happen to come to a complete agreement during mediation or probation, then the judge will review that agreement. Most of the time, the judge will accept these agreements, and sign them as the valid court order. Temporary orders, including agreements, are valid until the court issues a new order about that same issue or the parties enter a new agreement. If a temporary order is not changed by any subsequent order or agreement, it remains in full force and effect. Despite that the early orders are usually only temporary; the courts do consider these in making their final orders.
It is always best to seek the advice of a licensed family law attorney in your state if you are experiencing any issues in family court.
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