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Serving San Diego Family Law For Over 28 Years
IMPORTANT DECISIONS IN STARTING AN INITIAL CHILD CUSTODY PROCEEDING:
Things to Consider: When To File; What Kind Of Legal Action Should Initiate Custody Proceedings and Timing Is Critical.
It is important to understand this article that one understands Family Code Section 3064. 3064 states in part that,
"The 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 harm to the child or immediate risk that the child will be removed from the State of California."
For the Father, filing first may prevent a "kick out" order. Further, it may keep the family unit together during Family Court Service mediation. Thus, neither party is established as the "primary custody parent". Keeping the family unit together may be accomplished by an "ex-parte" application. (for more on "ex parte" applications-see below.) With this application the person bringing the motion will request an order preventing the removal of the children from the family residence.
When the parties are living separate and apart from one another: Filing first may prevent a parade of horrible allegations. (For example, if there really were spousal or child abuse, why would the custody parent live separate and apart without having brought those allegations into the legal system promptly.) Responding with allegations of spousal or child abuse often appears to be a less than truthful allegation made out of spite. Further, the filing may be combined with an ex-parte application. (For example, to prevent the custody party from removing the child from the County.)
For the Mother, often filing first involves some type of ex-parte application including "kick out" orders. Note the effect of a "kick out" order-This is an indirect child custody order. Or, if separation has already occurred and the children are situated in the home with the Mother, a "stay away" order becomes an indirect child custody order.
Both the "kick out" and "stay away" orders are ways around Family Code Section 3064 (above), which prevents an ex-parte custody order.
The "out spouse" may bitterly complain of the loss of custody. Even by pursuing custody/visitation as soon as possible, the "out spouse" may find that it will take a month or longer to go through Family Court Services and get into court.
While ex-parte applications are highly technical (the applications above are under the rules of a "Domestic Violence Restraining Order), a person familiar to the court system will know how to arrange, notice, and properly apply for ex-parte orders.
Requests for child custody may be brought in a variety of legal proceedings, or lawsuit (for example, Dissolution of Marriage, Legal Separation, Nullity proceedings). The lawsuit is simply the vehicle for bringing a child custody matter into court.
Additionally, paternity actions (Complaint to Establish Parental Relations) may be filed seeking custody when the Mother and the Father were never married.
As for the "ex-parte" applications discussed above: these applications are scheduled by one party (the "moving party") with 24 hours notice to the court and the other party. The are based on emergency circumstances such as domestic violence situations. They seek an immediately order that the other party ("responding party") must do or not do something (such as stay 100 yards away from the moving party).
Attorneys that handle child custody cases know that timing is critical in the initiation of the custody proceeding.
FOR ASSISTANCE WITH FAMILY LAW IN SAN DIEGO
CALL TOM HUGUENOR TODAY AT 858-546-4868
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