Issuance of Orders in Family Law Cases

Division 10, Part 4, Chapter 2, Article 1 of the Family Code deals with the issuance of ex parte order for the prevention of domestic violence.

Section 6320 authorizes the court to issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning, destroying personal property, contacting, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.

On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The phrase “disturbing the peace of the other party” is defined.

Section 6320.5 provides that an order denying a petition for an ex parte order must include the reasons for denying the petition. An order denying a jurisdictionally adequate petition for an ex parte order must provide the petitioner the right to a noticed hearing on the earliest date that the business of the court will permit.

Section 6321 authorizes the court to issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling. The court may issue an order only on a showing of all three specified items.

Section 6322 allows the court to issue an ex parte order enjoining a party from specified behavior that the court determines is necessary to effectuate orders.

Section 6322.5 provides that, when relevant information is presented to the court at a noticed hearing that a restrained person has a firearm or ammunition, the court must consider that information and determine, by a preponderance of the evidence, whether the person subject to a protective order has a firearm or ammunition in, or subject to, their immediate possession or control.

Section 6322.7 requires the court to order that any party enjoined pursuant to an order issued under this part be prohibited from taking any action to obtain the address or location of any protected person, unless there is good cause not to make that order.

Section 6323 allows the court to issue an ex parte order determining the temporary custody and visitation of a minor child, on the conditions the court determines, to a party who has established a parent and child relationship. The parties must inform the court if a custody or visitation order has already been issued in any other proceeding.

In making a determination of the best interest of the child, in order to limit the child’s exposure to potential domestic violence, and to ensure the safety of all family members, if the party who has obtained the restraining order has established a parent and child relationship and the other party has not established that relationship, the court may award temporary sole legal and physical custody to the party to whom the restraining order was issued and may make an order of no visitation to the other party pending the establishment of a parent and child relationship between the child and the other party. A party may establish a parent and child relationship only by offering proof of any of the eight specified items.

When making an order for custody or visitation pursuant to this section, the court’s order must specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members. In addition, the court must consider specified factors.

Section 6323.5 defines “discretionary services organization” and “essential care provider.” A court may include in an ex parte order a provision restraining a party from accessing records and information pertaining to the health care, education, daycare, recreational activities, or employment of a minor child of the parties.

Section 6324 allows the court to issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the order is in effect.

Section 6325 authorizes the court to issue an ex parte order restraining a married person from specified acts in relation to community, quasi-community, and separate property.

Section 6325.5 allows the court to issue an ex parte order restraining any party from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties, or their child or children, if any, for whom support may be ordered, or both.

Section 6326 requires an ex parte order under this article to be issued or denied on the same day that the application is submitted to the court, unless the application is filed too late in the day to permit effective review, in which case the order is to be issued or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court.