CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Nine Resolving Issues Before Trial

CALIFORNIA CALIFORNIA FAMILY LAW FAMILY LAW

FOR FOR PARALEGALS, 5PARALEGALS, 5thth

Ed.Ed.Chapter NineChapter NineResolving Issues Before Resolving Issues Before

TrialTrial

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A. PRELIMINARY A. PRELIMINARY CONSIDERATIONSCONSIDERATIONS

Temporary ordersTemporary orders are just that: orders made are just that: orders made at the request of either party (assuming at the request of either party (assuming sufficient factual and legal bases exist) during sufficient factual and legal bases exist) during the time period between the filing of the the time period between the filing of the Petition and the trial of the action.Petition and the trial of the action.

These orders are sometimes called These orders are sometimes called pendente pendente litelite, which is Latin for “pending trial.”, which is Latin for “pending trial.”

Included in this term are virtually all orders Included in this term are virtually all orders made pretrial, whether restraining order, made pretrial, whether restraining order, injunctive orders, or orders made regarding injunctive orders, or orders made regarding child custody, support, and other financial child custody, support, and other financial matters.matters.

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Ex parteEx parte is a term used to describe the is a term used to describe the process undertaken when the requesting party process undertaken when the requesting party does not (or cannot) give the responding party does not (or cannot) give the responding party the usually required notice of the request.the usually required notice of the request.

Sometimes certain orders must be made Sometimes certain orders must be made immediately.immediately.

Accordingly, the ex parte procedure was Accordingly, the ex parte procedure was created to allow notice to the responding party created to allow notice to the responding party consisting of a matter of hours rather than consisting of a matter of hours rather than days to cut short the usual three-week waiting days to cut short the usual three-week waiting period and thus provide relief on an expedited period and thus provide relief on an expedited basis.basis.

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An An injunctioninjunction can be either can be either preliminarypreliminary or or permanentpermanent..

By definition an injunction is an order of court that By definition an injunction is an order of court that either prohibits someone from doing an act (a either prohibits someone from doing an act (a prohibitoryprohibitory injunction) or one that requires, or injunction) or one that requires, or compels, a person to perform some act (a compels, a person to perform some act (a mandatorymandatory injunction). injunction).

Examples of prohibitive injunctions include stay Examples of prohibitive injunctions include stay away and non-harassment and non-molestation away and non-harassment and non-molestation orders.orders.

An example of a mandatory injunction would be an An example of a mandatory injunction would be an order that a party move out of the family residence.order that a party move out of the family residence.

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A A temporary restraining ordertemporary restraining order, or , or TRO, is typically issued ex parte.TRO, is typically issued ex parte.

It is of brief duration (usually no It is of brief duration (usually no more than 21 days) and expires at more than 21 days) and expires at the time of the hearing on the the time of the hearing on the preliminary injunction.preliminary injunction.

Its purpose is to maintain the status Its purpose is to maintain the status quo (or provide immediate relief) quo (or provide immediate relief) during the waiting period for the during the waiting period for the hearing on the subject of the TRO.hearing on the subject of the TRO.

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The The preliminary injunctionpreliminary injunction is an order of is an order of court made only after a noticed hearing.court made only after a noticed hearing.

The purpose of this order is to maintain the The purpose of this order is to maintain the status quo pending trial.status quo pending trial.

The TROs that preceded the issuance of the The TROs that preceded the issuance of the preliminary injunction (if requested and preliminary injunction (if requested and obtained) will be merged into the obtained) will be merged into the preliminary injunctive orders, which then preliminary injunctive orders, which then continue until further order of court or trial.continue until further order of court or trial.

A A permanent injunctionpermanent injunction is an injunctive is an injunctive order that continues to exist after the trial.order that continues to exist after the trial.

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A A stipulationstipulation simply refers to an simply refers to an agreement entered into between the agreement entered into between the parties to litigation.parties to litigation.

If an agreement is reached, it is essential If an agreement is reached, it is essential that its provisions be written down as that its provisions be written down as soon as possible and that the agreement soon as possible and that the agreement be turned into an order accordingly.be turned into an order accordingly.

In this fashion it will become In this fashion it will become enforceable.enforceable.

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B. THE ORDER TO SHOW B. THE ORDER TO SHOW CAUSECAUSE

The usual manner in which requests for The usual manner in which requests for orders pending trial are brought to the orders pending trial are brought to the court is through use of an Order to Show court is through use of an Order to Show Cause or a motion.Cause or a motion.

An Order to Show Cause (OSC) is issued by An Order to Show Cause (OSC) is issued by the court pursuant to application made ex the court pursuant to application made ex parte by the requesting party.parte by the requesting party.

It is then served upon the responding party, It is then served upon the responding party, being certain to provide for the minimum being certain to provide for the minimum amount of notice required by statute: 16 amount of notice required by statute: 16 court days (plus 5 days for mailing).court days (plus 5 days for mailing).

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The Order to Show Cause is in actuality The Order to Show Cause is in actuality an order to appear, directed to the an order to appear, directed to the responding party to appear at the hearing responding party to appear at the hearing date referenced thereon and date referenced thereon and show causeshow cause why the relief requested in the attached why the relief requested in the attached application should not be granted.application should not be granted.

If the responding party chooses to ignore If the responding party chooses to ignore the order and not attend the hearing, the the order and not attend the hearing, the hearing will be held without his input and hearing will be held without his input and orders will be made accordingly.orders will be made accordingly.

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1. 1. The Face SheetThe Face Sheet The process of preparing an Order to The process of preparing an Order to

Show Cause entails the use of several Show Cause entails the use of several documents.documents.

The first such document is form FL-300, The first such document is form FL-300, which is in essence a cover sheet and is which is in essence a cover sheet and is the first document in the application the first document in the application packet.packet.

Figure 9-1 on page 387 is a reproduction Figure 9-1 on page 387 is a reproduction of this form.of this form.

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2. 2. The Application for Order and The Application for Order and Supporting DeclarationSupporting Declaration

Figure 9-2 (on page 390) is the front Figure 9-2 (on page 390) is the front side (page 1) of form FL-310, side (page 1) of form FL-310, “Application for Order and Supporting “Application for Order and Supporting Declaration.”Declaration.”

This document accompanies the OSC This document accompanies the OSC face sheet when an order to show face sheet when an order to show cause is filed, and is self-explanatory.cause is filed, and is self-explanatory.

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Figure 9-3 (on page 393) is the back side Figure 9-3 (on page 393) is the back side (page 2) of form FL-310.(page 2) of form FL-310.

This side is set up substantially similar to This side is set up substantially similar to side 1 and contains requests pertinent to side 1 and contains requests pertinent to property restraints and control and property restraints and control and related matters, and provides for related matters, and provides for discussion of the propriety of the discussion of the propriety of the issuance of these orders by the issuance of these orders by the requesting party, which is set forth in requesting party, which is set forth in that party’s declaration.that party’s declaration.

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3. 3. The Income and Expense DeclarationThe Income and Expense Declaration Whenever financial relief is sought (support or Whenever financial relief is sought (support or

attorney’s fees being the most common such attorney’s fees being the most common such requests), the court requires that both parties requests), the court requires that both parties submit a form document that details their submit a form document that details their income and expenses.income and expenses.

This form is a four-page document adopted for This form is a four-page document adopted for use by the Judicial Council, thus making its use use by the Judicial Council, thus making its use mandatory.mandatory.

See Figure 9-4 on pages 398; Figure 9-5 on See Figure 9-4 on pages 398; Figure 9-5 on page 399; Figure 9-6 on page 400; Figure 9-7 on page 399; Figure 9-6 on page 400; Figure 9-7 on page 400; Figure 9-8 on page 401; Figure 9-9 on page 400; Figure 9-8 on page 401; Figure 9-9 on page 401; Figure 9-10 on page 402; and Figure page 401; Figure 9-10 on page 402; and Figure 9-11 on page 403.9-11 on page 403.

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4. 4. Temporary OrdersTemporary Orders Temporary Orders are available in an OSC Temporary Orders are available in an OSC

proceeding and are typically used to proceeding and are typically used to maintain the status quo between the time of maintain the status quo between the time of filing the OSC papers and the hearing date filing the OSC papers and the hearing date set by the court: in other words, immediate set by the court: in other words, immediate relief on very short notice.relief on very short notice.

Judicial Council form FL-305 shown in Judicial Council form FL-305 shown in Figure 9-12 on page 405 is the document in Figure 9-12 on page 405 is the document in which those requests are made in this which those requests are made in this context.context.

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C. THE NOTICED C. THE NOTICED MOTIONMOTION

A A motionmotion, much like an order to show cause, is , much like an order to show cause, is simply a written request to the court that it simply a written request to the court that it provide the applicant with the relief requested provide the applicant with the relief requested therein.therein.

It is called a It is called a noticed motionnoticed motion because the because the opposing party must be given opposing party must be given noticenotice of the of the request at least 21 days before the hearing held request at least 21 days before the hearing held by the court.by the court.

At this hearing the court will listen to the At this hearing the court will listen to the arguments of both sides and will decide whether arguments of both sides and will decide whether to grant the moving party the relief he has to grant the moving party the relief he has requested.requested.

It is very similar to the order to show cause It is very similar to the order to show cause procedure and the forms used are nearly procedure and the forms used are nearly identical.identical.

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C. THE NOTICED C. THE NOTICED MOTIONMOTION

1. 1. The Face SheetThe Face Sheet Judicial Council form FL-301 shown in Figure Judicial Council form FL-301 shown in Figure

9-13 (on page 407) is the form to use when 9-13 (on page 407) is the form to use when requesting relief from the court by way of a requesting relief from the court by way of a noticed motion.noticed motion.

Of note is the fact that this form simply Of note is the fact that this form simply conveys conveys noticenotice to the other party that on the to the other party that on the referenced day and time the relief described in referenced day and time the relief described in the motion will be requested.the motion will be requested.

The responding party can either respond or The responding party can either respond or not, depending upon her particular desire.not, depending upon her particular desire.

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C. THE NOTICED MOTIONC. THE NOTICED MOTION

2. 2. The Application for Order and Supporting The Application for Order and Supporting DeclarationDeclaration

Whenever a request is made to the court by Whenever a request is made to the court by noticed motion, it must be accompanied by noticed motion, it must be accompanied by an Application for Order and Supporting an Application for Order and Supporting Declaration, form FL-310.Declaration, form FL-310.

3. 3. The Income and Expense DeclarationThe Income and Expense Declaration If any financial issues are to be addressed by If any financial issues are to be addressed by

the court pursuant to the noticed motion, the court pursuant to the noticed motion, even only attorney’s fees and costs, this even only attorney’s fees and costs, this document (form FL-150) must be completed document (form FL-150) must be completed and submitted to the court.and submitted to the court.

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C. THE NOTICED MOTIONC. THE NOTICED MOTION

4. 4. Points and AuthoritiesPoints and Authorities In addition to the documents discussed In addition to the documents discussed

above, inasmuch as a noticed motion typically above, inasmuch as a noticed motion typically addresses questions of law rather than addresses questions of law rather than questions of fact (which are typically dealt questions of fact (which are typically dealt with using the Order to Show Cause with using the Order to Show Cause procedure) even though not always required, procedure) even though not always required, it is generally a good idea to submit a it is generally a good idea to submit a memorandum of points and authorities to the memorandum of points and authorities to the court along with a noticed motion.court along with a noticed motion.

See sample Memorandum of Points and See sample Memorandum of Points and Authorities on pages 410-413.Authorities on pages 410-413.

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D. RESPONDING TO THE D. RESPONDING TO THE OSC; MOTIONOSC; MOTION

When faced with either an OSC or a Noticed When faced with either an OSC or a Noticed Motion, a party has two choices; one, simply Motion, a party has two choices; one, simply agree with the relief sought or some similarly agree with the relief sought or some similarly acceptable compromise (thus obviating the OSC acceptable compromise (thus obviating the OSC or motion proceedings) or, second, oppose the or motion proceedings) or, second, oppose the request.request.

A party responding to an OSC (or noticed A party responding to an OSC (or noticed motion) is allowed, pursuant to Family Code motion) is allowed, pursuant to Family Code section 213, not only to object to the relief section 213, not only to object to the relief sought in the application, but to propose sought in the application, but to propose affirmative relief of his own so long as the affirmative relief of his own so long as the affirmative relief is on the same issue(s) raised affirmative relief is on the same issue(s) raised by the applicant party.by the applicant party.

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The responding party need only file her The responding party need only file her opposition a mere ten opposition a mere ten calendarcalendar days before the days before the hearing.hearing.

If the responding party wishes to have orders If the responding party wishes to have orders made on issues made on issues notnot framed by the applicant’s framed by the applicant’s papers, she will have to file her own OSC or papers, she will have to file her own OSC or noticed motion.noticed motion.

The “Responsive Declaration” adopted by form The “Responsive Declaration” adopted by form FL-320 (Figure 9-14 on pages 415-416) is the FL-320 (Figure 9-14 on pages 415-416) is the document that the responding party will use to document that the responding party will use to either simply object or request affirmative relief.either simply object or request affirmative relief.

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This form can be used when responding to an This form can be used when responding to an Order to Show Cause or a Noticed Motion.Order to Show Cause or a Noticed Motion.

Also noteworthy is the fact that the party Also noteworthy is the fact that the party responding to an Order to Show Cause or responding to an Order to Show Cause or Noticed Motion is given the opportunity to Noticed Motion is given the opportunity to attach a declaration of her own to her attach a declaration of her own to her responding papers.responding papers.

The Income and Expense Declaration (form The Income and Expense Declaration (form FL-150) must also accompany the responsive FL-150) must also accompany the responsive declaration if financial issues are to be declaration if financial issues are to be determined at the hearing.determined at the hearing.

A Memorandum of Points and Authorities is A Memorandum of Points and Authorities is also advised, especially if the applicant has also advised, especially if the applicant has presented them.presented them.

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E. TEMPORARY AND EX E. TEMPORARY AND EX PARTE ORDERSPARTE ORDERS

The Family Code is replete with statutes that The Family Code is replete with statutes that authorize a request for a temporary order.authorize a request for a temporary order.

These orders are requested on an ex parte These orders are requested on an ex parte basis and are designed to provide immediate basis and are designed to provide immediate relief during the period between filing the relief during the period between filing the request and the time the court conducts its request and the time the court conducts its hearing.hearing.

The first time parties to a marital dissolution, The first time parties to a marital dissolution, legal separation, nullity action, or action legal separation, nullity action, or action under the Uniform Parentage Act are granted under the Uniform Parentage Act are granted temporary restraining orders is when the temporary restraining orders is when the family law summons is issued.family law summons is issued.

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The next kind of temporary order The next kind of temporary order available on shortened notice is available on shortened notice is described in Family Code sections 240 et described in Family Code sections 240 et seq.seq.

This section of the Code is entitled “Ex This section of the Code is entitled “Ex Parte Temporary Restraining Orders and Parte Temporary Restraining Orders and Support Orders Issued Without Notice.”Support Orders Issued Without Notice.”

This statute authorizes the issuance of This statute authorizes the issuance of TROs without TROs without anyany notice whatsoever. notice whatsoever.

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Of course, the circumstances under which the Of course, the circumstances under which the normal requirements of due process will be normal requirements of due process will be waived are strictly construed and very limited.waived are strictly construed and very limited.

In fact, section 241 actually establishes that In fact, section 241 actually establishes that TROs will TROs will notnot be issued without notice “unless be issued without notice “unless it appears from facts shown by the affidavit it appears from facts shown by the affidavit [declaration] in support of the application for [declaration] in support of the application for the order, that the order, that great or irreparable injury great or irreparable injury would result to the applicant before the matter would result to the applicant before the matter can be heard on noticecan be heard on notice [emphasis added].” [emphasis added].”

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Family Code sections 3060 to 3064 establish a Family Code sections 3060 to 3064 establish a statutory scheme for the request for temporary statutory scheme for the request for temporary custody orders during the pendency of the custody orders during the pendency of the litigation, and sections 3600 to 3604 provide litigation, and sections 3600 to 3604 provide for pendente lite support orders.for pendente lite support orders.

Sections 3620 to 3634 establish a means of Sections 3620 to 3634 establish a means of obtaining expedited child support while an obtaining expedited child support while an action is pending and section 4620 allows the action is pending and section 4620 allows the court to, on an ex parte basis, restrain a party court to, on an ex parte basis, restrain a party from disposing of his assets during the from disposing of his assets during the pendency of a request for the establishment of pendency of a request for the establishment of a deposit of assets to secure payment of future a deposit of assets to secure payment of future child support.child support.

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F. DOMESTIC VIOLENCE F. DOMESTIC VIOLENCE PREVENTION ACTPREVENTION ACT

There are special circumstances contained in the There are special circumstances contained in the Family Code which do not require underlying litigation Family Code which do not require underlying litigation to provide the applicant a means of obtaining a court to provide the applicant a means of obtaining a court order.order.

Division 10 of the Family Code, entitled “Prevention of Division 10 of the Family Code, entitled “Prevention of Domestic Violence,” found at sections 6200 et seq., is Domestic Violence,” found at sections 6200 et seq., is such a circumstance.such a circumstance.

The “Domestic Violence Prevention Act (DVPA),” as The “Domestic Violence Prevention Act (DVPA),” as this set of statutes is known, was established with the this set of statutes is known, was established with the express purpose “to prevent the recurrence of acts of express purpose “to prevent the recurrence of acts of violence and sexual abuse and to provide for violence and sexual abuse and to provide for separation of the persons involved in the domestic separation of the persons involved in the domestic violence for a period sufficient to enable these persons violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.”to seek a resolution of the causes of the violence.”

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Orders may be obtained in the context of the Orders may be obtained in the context of the Domestic Violence Prevention Act in basically Domestic Violence Prevention Act in basically two ways:two ways:

The party may file for relief by filing an The party may file for relief by filing an application and declaration under the DVPA, application and declaration under the DVPA, having a hearing on the application set, and having a hearing on the application set, and requesting, if appropriate, the issuance of requesting, if appropriate, the issuance of temporary orders ex parte.temporary orders ex parte.

The other means of invoking the DVPA is when The other means of invoking the DVPA is when a law enforcement officer requests orders a law enforcement officer requests orders under its provisions.under its provisions.

These orders are known as These orders are known as Emergency Emergency Protective OrdersProtective Orders and are prepared and and are prepared and applied for by law enforcement personnel.applied for by law enforcement personnel.

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The law enforcement officer will, once he has The law enforcement officer will, once he has satisfied himself as to the existence of one of satisfied himself as to the existence of one of the conditions set forth in Family Code section the conditions set forth in Family Code section 6250, then transmit (by telephone) his beliefs 6250, then transmit (by telephone) his beliefs to a judicial officer who is empowered to issue to a judicial officer who is empowered to issue protective and restraining orders over the protective and restraining orders over the telephone.telephone.

The judicial officer can issue such orders as The judicial officer can issue such orders as protective orders, order delegating temporary protective orders, order delegating temporary care and control of minor children of the care and control of minor children of the battling parties, and an order placing those battling parties, and an order placing those children in the care of the party to the dispute children in the care of the party to the dispute who is not the one to be restrained.who is not the one to be restrained.

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These orders will only last for five These orders will only last for five business days or seven calendar business days or seven calendar days after their issuance, during days after their issuance, during which time the party who is not which time the party who is not being restrained is expected to make being restrained is expected to make application for more permanent application for more permanent orders.orders.

See Figure 9-15 on pages 421-422.See Figure 9-15 on pages 421-422.

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The other manner in which the provisions of The other manner in which the provisions of the DVPA may be invoked is if the endangered the DVPA may be invoked is if the endangered person herself makes application for orders.person herself makes application for orders.

Sections 6300 et seq. of the Family Code Sections 6300 et seq. of the Family Code discuss this avenue of relief in detail.discuss this avenue of relief in detail.

The order available on an ex parte basis to The order available on an ex parte basis to the applicant include exclusion of the the applicant include exclusion of the restrained person from the family home, a restrained person from the family home, a determination of temporary custody and determination of temporary custody and visitation, a restraint on the use or disposal of visitation, a restraint on the use or disposal of community and separate property, and orders community and separate property, and orders for exclusive use of certain assets and for exclusive use of certain assets and property as well as the payment of certain property as well as the payment of certain debts.debts.

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After a hearing the court can additionally After a hearing the court can additionally award payment of child support, payment of award payment of child support, payment of restitution to the protected party for out-of-restitution to the protected party for out-of-pocket expenses caused by the incident leading pocket expenses caused by the incident leading up to the application, attorney’s fees and costs, up to the application, attorney’s fees and costs, and can even include an order that the and can even include an order that the restrained party (or both if the court so restrained party (or both if the court so decides) participate in counseling.decides) participate in counseling.

These orders will last, if issued ex parte, until These orders will last, if issued ex parte, until the date of the hearing on the application the date of the hearing on the application (usually about three weeks’ time).(usually about three weeks’ time).

After notice and hearing, these orders will After notice and hearing, these orders will generally last three years unless otherwise generally last three years unless otherwise specified by the court.specified by the court.

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There are judicial council forms for this There are judicial council forms for this process.process.

The application form itself, reflected by form The application form itself, reflected by form DV-100, is four pages long and is set out in DV-100, is four pages long and is set out in Figure 9-16 on pages 425-428.Figure 9-16 on pages 425-428.

Recognizing the highly volatile and emotional Recognizing the highly volatile and emotional nature of an abusive situation, Family Code nature of an abusive situation, Family Code section 6303 specifically authorizes a “support section 6303 specifically authorizes a “support person” to attend the DVPA hearing with the person” to attend the DVPA hearing with the applicant and be present with him at counsel applicant and be present with him at counsel table.table.

The support person may, in fact, accompany The support person may, in fact, accompany the applicant to any proceeding called for, the applicant to any proceeding called for, even confidential mediation proceedings.even confidential mediation proceedings.

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There are provisions related to the enforcement There are provisions related to the enforcement of these laws both here and across state lines.of these laws both here and across state lines.

Family Code sections 6380 et seq., generally Family Code sections 6380 et seq., generally provide that a protective or restraining order provide that a protective or restraining order related to domestic or family violence and related to domestic or family violence and issued by a court of another state, a tribe, or a issued by a court of another state, a tribe, or a military tribunal shall be deemed valid if the military tribunal shall be deemed valid if the issuing court had jurisdiction over the parties issuing court had jurisdiction over the parties and the matter, as well as a system of the and the matter, as well as a system of the electronic sharing of this information across electronic sharing of this information across political and geographical borders.political and geographical borders.

It is known as CLETS, which stands for It is known as CLETS, which stands for California Law Enforcement California Law Enforcement Telecommunications System.Telecommunications System.

Documents

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Nine Resolving Issues Before Trial