California Emergency Ex Parte' Denied

[SierraHa49]

What is the name of your state? California

I filed an Emergency Ex Parte' to modify custody and visitation from Joint Physical and Legal custody to Primary Physical and Legal custody to myself. The reason for the request for modification was due to the other party withholding the child from me during my court ordered custodial time, and the other party also transferred the child to a different school. The other party did this without a mutual agreement or a court order. 24 hours after filing the motion, the clerk informed me that the Ex Parte' was denied, but that a hearing was set for 12/10/2018, however, the clerk said she was unable to provide any paperwork to have the other party served, or for my records.

My questions are:

1. Is there any reason why a judge would deny the Ex Parte' given these specific circumstances?
2. Is there any reason why I would not be provided signed copies of the paperwork showing that the Ex Parte' was denied, and that a hearing was set for the case?
3. Would it be worth attending this hearing being that the other party will not appear without being served paperwork, and should I just re-file through an attorney's office?
4. Is there any sort of penalty for not appearing at tomorrow's hearing?
5. What is the appropriate action to be taken when a court order, such as this, is breached?

Thank you in advance for your help.

 

[Taxing Matters]

The court likely denied the motion because what you put in the motion did not establish what was needed to grant your request without the other parent having the opportunity to contest it. Absent some really compelling circumstance, like a showing of imminent harm to the child, the court is going to want to give the other parent the opportunity to provide his/her side of it before changing the custody arrangements. You probably should attend the hearing that has been for 12/10 or you may lose out on the opportunity to further pursue the custody change.

You should consult an attorney at your earliest opportunity to have your best chance to succeed in this.

 

[stealth2]

What is the name of your state? California

I filed an Emergency Ex Parte' to modify custody and visitation from Joint Physical and Legal custody to Primary Physical and Legal custody to myself. The reason for the request for modification was due to the other party withholding the child from me during my court ordered custodial time, and the other party also transferred the child to a different school. The other party did this without a mutual agreement or a court order. 24 hours after filing the motion, the clerk informed me that the Ex Parte' was denied, but that a hearing was set for 12/10/2018, however, the clerk said she was unable to provide any paperwork to have the other party served, or for my records.

My questions are:

1. Is there any reason why a judge would deny the Ex Parte' given these specific circumstances?
2. Is there any reason why I would not be provided signed copies of the paperwork showing that the Ex Parte' was denied, and that a hearing was set for the case?
3. Would it be worth attending this hearing being that the other party will not appear without being served paperwork, and should I just re-file through an attorney's office?
4. Is there any sort of penalty for not appearing at tomorrow's hearing?
5. What is the appropriate action to be taken when a court order, such as this, is breached?

Thank you in advance for your help.

1. It likely wasn't seen as an emergency.
2. My *guess* would be that it was a simple rubber-stamp, held over for a hearing. Because it wasn't an emergency.
3a. *I* would be at the hearing. You only reinforce the lack of emergent circumstances by not being there.
3b. *I* would be speaking with a lawyer. If you had done so originally, s/he would have explained to you why an ex parte wasn't the proper step.
4. "Penalty"? Only telling the judge that you weren't really serious.
5. A contempt filing.

 

[CdwJava]

As a note, an emergency ex parte request is required in certain circumstances such as when one party to a custody agreement violates the order out of a concern for the safety of the child(ren) in question. There is insufficient information presented here to determine if this request was the case or not.

General guidelines for their use are found here:

http://www.courts.ca.gov/partners/documents/NeedEmergencyCustVisOrder.pdf

 

[Taxing Matters]

As a note, an emergency ex parte request is required in certain circumstances such as when one party to a custody agreement violates the order out of a concern for the safety of the child(ren) in question.

Right. And California also uses the term ex parte a bit differently than does any other jurisdiction I'm familiar with. Some things that California calls an ex parte request are called something else where I practice. That's why I avoided referring to ex parte specifically in my reply and focused on the more central issue that the other parent had not been served and had not been given an opportunity to contest in this case. Even in California the courts are reluctant (for good reason) to issue rulings or orders with the participation of all parties absent a showing that immediate action is needed to prevent some kind of irreversible harm. And what the OP stated — missed visitation and a change of school districts — would not generally meet be that urgent.