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EX Parte is it allowed / California Family Law

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  • EX Parte is it allowed / California Family Law

    The judge in my paternity case ordered a DNA at DCSS on # 11 14 at my request because the mother denies I am the father which I am 99% sure I am. I am the petitioner. I opened the case at DCSS on March 18. I did not do it earlier because I was getting conflicting info on how to do so and I was ill. I received a copy of a fax the respondents attorney sent to the judge just today by mail from the other attorney asking for the DNA to be done at an independent lab because there was no open case with DCSS at the time the attorney checked, but again, now there is.

    My questions is this: I was informed that Ex Parte is not permitted by either party and to inform DCSS of this and let them handle it. Is this good advice and is it true that Ex Parte is not allowed by either party? I have read that it is allowed if I am notified that a communication was indeed sent to the judge so I am confused? So should I send my response to the judge that indeed there is at this time a open case with DCSS? or should I not? Also, in this letter to the judge, it stated that the mother does not want or need an open case with DCSS. It seems like they on the defensive.

  • #2
    Re: EX Parte is it allowed / California Family Law

    An ex parte hearing is permissible, it's typically used in family law to get an emergency temporary order, such as for custody. Since they are typically requested and completed within 2 days, you would be notified after the fact.

    Either party can open a case with the IV-D agency. They can establish paternity and orders for child support.

    Comment


    • #3
      Re: EX Parte is it allowed / California Family Law

      I wish to inform you that ex parte means a legal proceeding which is brought by one person in the absence of and without representation or notification of other parties. In California, for ex parte proceedings notice is given before 10 a.m. the previous court day or even shorter notice may be given in case of emergency need. The notice is generally confirmed by fax. With Court approval the opponent may appear by telephone. Further, an ex parte application must contain a declaration based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting of ex parte relief.

      AFF

      Comment


      • #4
        Re: EX Parte is it allowed / California Family Law

        Originally posted by Robby View Post
        The judge in my paternity case ordered a DNA at DCSS on # 11 14 at my request because the mother denies I am the father which I am 99% sure I am. I am the petitioner. I opened the case at DCSS on March 18. I did not do it earlier because I was getting conflicting info on how to do so and I was ill. I received a copy of a fax the respondents attorney sent to the judge just today by mail from the other attorney asking for the DNA to be done at an independent lab because there was no open case with DCSS at the time the attorney checked, but again, now there is.

        My questions is this: I was informed that Ex Parte is not permitted by either party and to inform DCSS of this and let them handle it. Is this good advice and is it true that Ex Parte is not allowed by either party? I have read that it is allowed if I am notified that a communication was indeed sent to the judge so I am confused? So should I send my response to the judge that indeed there is at this time a open case with DCSS? or should I not? Also, in this letter to the judge, it stated that the mother does not want or need an open case with DCSS. It seems like they on the defensive.
        Making substantive orders ex parte, (without the party), is a violation of Constitutional guarantees of due process and, further, violates the judge's oath and Canons of Judicial Conduct.

        A party to a proceeding is entitled to notice and opportunity to be heard. There are exceptions, such as in the case of a restraining order, but those are temporary and the case set for full hearing so the party can present his or her objections, if any.

        There was a California court that adopted its own Local Rule allowing orders to be obtained by just the adversary attorney coming into court and saying the other party "doesn't object." Like they never heard of "stipulation". That rule ripped US and California Constitutional guarantees up one side and down the other and,. needless to say, created chaos for some years. I hope it's not still in effect.

        You have a right to oppose the lawyer's motion and should notify the judge immediately, with a formal written opposition to the file, copy to the judge.

        Comment


        • #5
          Re: EX Parte is it allowed / California Family Law

          Originally posted by goddessoflubboc View Post
          An ex parte hearing is permissible, it's typically used in family law to get an emergency temporary order, such as for custody. Since they are typically requested and completed within 2 days, you would be notified after the fact.

          Either party can open a case with the IV-D agency. They can establish paternity and orders for child support.
          Ex parte custody orders are extremely rare and fraught with chaos, legal and familial.

          Custody of one's child is a very important matter and right and it should not be done ex parte. A California court became notorious for making substantive orders ex parte, without notice, which brought years of front page articles, litigants suing in federal court, one litigant setting himself on fire on the courthouse steps, threats against several of the court's judges, pickets outside the courthouse, and "60 Minutes" wanting to cover the story.

          It is a violation of the US and California's Constitutions to make substantive orders ex parte, without notice to the other party. It's called the Due Process Clause. And such orders, therefore, are illegal. The rare exceptions are in emergency situations where harm could occur before notice can be given. Restraining orders are one such example. Injunctions, another. But even then, a hearing it set so the other party can be fully heard.

          Comment


          • #6
            Re: EX Parte is it allowed / California Family Law

            I believe if you read my post in its entirety you will notice the word emergency.

            If they were unconstitutional they wouldn't exist.

            Comment


            • #7
              Re: EX Parte is it allowed / California Family Law

              So How is it the opposing attorney got away with this?

              Comment


              • #8
                Re: EX Parte is it allowed / California Family Law

                As long as DCSS is involved, the DNA testing will be done by a lab contracted for such things by DCSS. Your question about "ex parte" is somewhat confusing, but you really don't need to worry about it anyway. Just contact DCSS and explain things. The attorney really didn't "get away" with anything.

                Comment


                • #9
                  Re: EX Parte is it allowed / California Family Law

                  Originally posted by goddessoflubboc View Post
                  I believe if you read my post in its entirety you will notice the word emergency.

                  If they were unconstitutional they wouldn't exist.
                  Ex parte orders exist. It is the use of them that may be unconstitutional.

                  Emergency orders for custody are and should be issued ONLY when harm is imminent and would occur before notice and hearing could be held.

                  The examples I gave were when they were misused -- done as a matter of course -- taking children away from a parent without reason, without notice and opportunity to be heard.

                  Contested custody matters, by the way, by states' statutes require an investigation --- they are not and should not be determined on the motion calendar by affidavit and bare allegations.

                  Anyone who has been through a contested custody matter knows that.

                  Comment


                  • #10
                    Re: EX Parte is it allowed / California Family Law

                    Originally posted by Friend In Court View Post
                    Ex parte orders exist. It is the use of them that may be unconstitutional.

                    Emergency orders for custody are and should be issued ONLY when harm is imminent and would occur before notice and hearing could be held.

                    The examples I gave were when they were misused -- done as a matter of course -- taking children away from a parent without reason, without notice and opportunity to be heard.

                    Contested custody matters, by the way, by states' statutes require an investigation --- they are not and should not be determined on the motion calendar by affidavit and bare allegations.

                    Anyone who has been through a contested custody matter knows that.

                    Not in California. They'll meet with a mediator and that's about it. If the mediator can't reach a stipulation on custody matters then the court figures it out at hearing.

                    Comment


                    • #11
                      Re: EX Parte is it allowed / California Family Law

                      Originally posted by SupportAttyGuy View Post
                      Not in California. They'll meet with a mediator and that's about it. If the mediator can't reach a stipulation on custody matters then the court figures it out at hearing.
                      Having been through a California contested custody proceeding, that was the statute and procedure.

                      When allegations of unfitness are made, unwholesome home conditions, for example, a mediator sitting at a distance cannot make the determination of the truth. Further, when an evaluation needs to be made, the court is the one to determine from the content of the report, reliability of the psychologist, whether the report is to be adopted.

                      Comment


                      • #12
                        Re: EX Parte is it allowed / California Family Law

                        Originally posted by Friend In Court View Post
                        Having been through a California contested custody proceeding, that was the statute and procedure.

                        When allegations of unfitness are made, unwholesome home conditions, for example, a mediator sitting at a distance cannot make the determination of the truth. Further, when an evaluation needs to be made, the court is the one to determine from the content of the report, reliability of the psychologist, whether the report is to be adopted.
                        Less and less that's the case, primarily due to budget reasons. You're referring to a 730 Evaluation. If the parties can't afford to pay the doctor, the courts often do not have the funds to do it themselves anymore. We've closed scores of courtrooms here in the last couple of years. Money is tight. The courts will now o to great lengths to have the mediator resolve issues or try it themselves before paying for a 730.

                        Comment


                        • #13
                          Re: EX Parte is it allowed / California Family Law

                          Originally posted by SupportAttyGuy View Post
                          Not in California. They'll meet with a mediator and that's about it. If the mediator can't reach a stipulation on custody matters then the court figures it out at hearing.
                          Well, I did go to DCSS opened a case and they told me that regardless of the Ex Parte request they will do the testing. However, the judge did amend the original order to have the testing done at DCSS without a word from me in defence. I did send a fax to the Judge explaining this and filed a copy with another copy to the opposing attorney
                          If an Ex Parte is for emergency matters only, that why was this motion entertained? There was no emergency.

                          Comment


                          • #14
                            Re: EX Parte is it allowed / California Family Law

                            Originally posted by Robby View Post
                            Well, I did go to DCSS opened a case and they told me that regardless of the Ex Parte request they will do the testing. However, the judge did amend the original order to have the testing done at DCSS without a word from me in defence. I did send a fax to the Judge explaining this and filed a copy with another copy to the opposing attorney
                            If an Ex Parte is for emergency matters only, that why was this motion entertained? There was no emergency.
                            Not being there it would be impossible for me to say why the court entertained it, but it sounds to me like you got what you wanted, a test done by DCSS? right?

                            Comment


                            • #15
                              Re: EX Parte is it allowed / California Family Law

                              Yes, I did however, I am angry that the judge amended his original order to allow an independent lab to do it. My gosh, having the case opened at DCSS only 9 days after the last hearing where it was ordered does not seem unreasonable and further more, I was not told I had a certain amount of time to do this. If Ex Parte is used only for emergency situations, I would have though the judge would ignore the request. I feel this was improper of the opposing attorney to do this. I did Fax to the Judge that the case is now opened with DCSS and stated politely that I felt the attorney was being adversarial and unnecessarily delaying adjudication of the case and this was not in the best interests of my children. I served the other attorney a copy my mail with proof of service and two copies sent to the court clerk. I was told that this was not really necessary, but I did.

                              Comment

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