Request for Order and Hearings
Learn how to properly bring or defend against a request for order
What is a request for order and how does the process really work?
Sometimes, it just cannot wait and the need for emergency family law orders requires your divorce attorney to move fast. These "can't wait" requests are limited to specific situations. Some divorce attorneys will have you believe anything you think is an emergency is really one. The Family Court doesn't see it that way so you shouldn't either.
Sometimes, it can and must wait and either or both spouses may file a request for order ("RFO") during the divorce.
Prepare to learn about both.
In this article, we will discuss the most common factual situations where immediate or emergency family court orders are necessary and when they are not. These include California domestic violence restraining order requests, requests for custody, child support and alimony, attorney's fees and certain property restraint or control orders.
We write this article from the perspective of the spouse or parent who requests the orders and the one opposing the request. Our attorneys do this because improper requests for orders are common and if you are facing such an order, you should know your rights and options.
If you have any questions after you read this, please don't hesitate to contact our law firm for an initial strategy session. We will discuss the facts of your case and help you plan out a strategy that is right for you and a budget that makes sense.
Domestic Violence & Restraining Orders
1. Victims Who Seek A Domestic Violence Restraining Order
Attorneys, on behalf of their client who has been the victim of domestic violence, can file an immediate domestic violence restraining order petition and seek a restraining order against the abuser. These are not the typical request for order ("RFO") becuase domestic violence petitions have their forms and they start with "DV" and then a form number that follows the designation.
The victim can seek a temporary order on an emergency basis. That temporary order, if granted, will be valid until there is a full hearing on the allegations. At the hearing, divorce attorneys will typically offer the testimony of his or her client and witnesses as well as any documentary evidence and photographs. The Court will then make an order to either grant the restraining order or deny it. If the Court grants the order, it has the choice to grant it for as long as necessary for the protection of the victim and to allow a cooling off period. Typical restraining orders are for one to three years. On serious cases, or those that have a history of multiple incidents, the Court may grant them for up to five years. Most attorneys seeks a three year restraining order.
2. Spouse or Parent Claiming False Allegations of Domestic Violence
A parent who claims he or she is falsely accused must move fast. That is because domestic violence restraining order hearings move fast. Domestic violence restraining orders are generally and initially sought on an emergency basis. Within 24 hours notice or less, the person who claims to be the victim of domestic violence will seek a temporary restraining order that not only can impact your right to communicate with him or her but can also directly prevent you from contacting your children. Such emergency requests may also result in an order for you to pay support. Some victims seek these temporary restraining orders without notice because they claim that to give notice would place them or the children in harm. You have a limited amount of time to act.
Your response to the restraining order request must be immediate. If you have not committed the domestic violence and the allegations against you are false, you should inform the court of the true facts and attach any documentation as well as identify any witnesses who can testify to the truthfulness of the events.
Too many times, attorneys do not properly respond to false allegations of abuse. They provide insufficient or incomplete information to the court. In such situations, at the time the court has a hearing, the judge will not hear or see all the necessary testimony and evidence in support of your case. Our family law attorneys believe the best way to defend false allegations of domestic violence is to file detailed declarations under oath prior to the hearing so the court is informed of your side of the story. The one exception to this may be those situations where you have a pending criminal case you. Your criminal defense attorney properly ask you to invoke the 5th Amendment privilege against self-incrimination.
Assuming there is no 5th Amendment issue or criminal case, in addition, we expect both character witnesses and eyewitnesses, if there are any, to come forward and testify regarding the incident as well as their actual and personal knowledge of your lack of propensity for violence and your accuser's propensity to make false allegations, if the facts support such a claim.
3. Parent Claiming Child Abuse
A parent who claims child abuse can immediately seek the court's assistance by requests for orders that prevent the abusing parent from seeing the child or having any visitation with the child. Child abuse can range from physical abuse to sexual abuse. Emotional abuse of the children would have to be severe for a court to make emergency orders that prevent a parent from seeing the child.
Good divorce attorneys know that emotional abuse cases are harder to prove and require the assistance of either a lawyer for the child appointed by the court and which can be requested by your lawyer or the involvement of a forensic psychologist who evaluates the parents, the child and makes recommendations to the court. Parents who truthfully claim physical abuse should also involve the local police as well as potentially the Department of Child and Family Services, also known as child protective services.
4. Parent Claiming He or She is Falsely Accused of Child Abuse
A parent who is falsely accused of child abuse must take immediate and careful action in response to the allegations. That parent must seek the advice of an experienced family law attorney. What we are about to write is limited to situations where there is not a pending criminal case. If there is a pending criminal case of child abuse against that parent, the advice of an experienced criminal defense attorney is absolutely necessary before any action is taken.
If there is no criminal case, the parent who is falsely accused of child abuse should, with the help of his or her divorce attorney, gather witness names and statements who can testify regarding parenting as well as their own personal knowledge of the allegations.
We know that this investigative process is an essential part of succeeding in cases that involve false allegations of child abuse. In addition, so long as the parent can financially afford this type of litigation, we strongly recommend either the immediate involvement of a forensic psychological evaluator appointed by the court or the deposition of the parent who alleges abuse as well as any witnesses the parent claims witnessed the abuse. These witnesses include any doctors who have attested to or have reported the abuse.
There is no one and perfect way to handle the defense in Family Court of false child abuse cases. However, there are plenty of ways to handle them poorly. A thorough investigation, depositions and discovery on the issues of child abuse and the involvement of a forensic psychologist are the most effective ways to defend these allegations and to give you the best chance of success in court.
Our divorce attorneys work with you from the outset of the case to make a list of important witnesses and documents and put together a plan of action for the defense of the false child abuse allegations against you.
Child Custody Disputes
1. Parent who has been the primary caretaker
A parent who has been the primary caretaker of the child will generally want to seek a court order that solidifies that arrangement in writing. Parents who have been the primary caretakers are often concerned that the other parent will attempt to disrupt the status quo that has been established through months or years of the child's life.
As a result, it is important that such a parent seek an immediate request for court order, although rarely necessary on an emergency basis, for custody and visitation. Such requests asked the court to take the current status quo arrangement and make it an order of the court so that the parent who has been the primary custodian can continue to care for the children in the same way that you she has been prior to the divorce or separation. Our family law attorneys work hard with you to determine the current status quo and we will put together a detailed declaration and explanation to the family court as to why the status quo is in the child's best interest.
2. Parent Who Wants to Become the Primary Caretaker
A parent who has not been the primary caretaker but wishes to become one generally has to show that the children's health, safety, education or general welfare (collectively called "best interest" standard in custody cases) is being harmed or seriously compromised while the children are in the care and custody of the other parent.
The parent who has not been the primary caretaker will have a difficult time at the beginning of the case to suddenly change the status quo without compelling facts and evidence as to why the status quo should not continue.
That is because courts like to bring stability and predictability to a child's life while a divorce is pending. Courts are reluctant to change the status quo for this reason. We know that facts are everything in such cases. It is not enough to simply make allegations. The allegations of parent should be supported by the testimony of witnesses, documents or even the testimony of children, if they are old enough to testify.
Child Support and Alimony
1. Spouse or parent requesting child support and alimony
If you do not have an income and cannot support yourself or the children during the divorce or your income is not nearly enough to maintain the status quo of your marital lifestyle, then you should seek an immediate order for child support and, if you are married, alimony. This request can be simple and straightforward if your spouse is a W-2 wage earner or, if he or she is self-employed, the earnings and income is not complex.
If your spouse is self-employed and his or her business and income calculation is complex, your divorce attorney can seek the assistance of a forensic accountant to conduct what we typically call a cash flow analysis for support purposes.
2. Spouses or Parents Responding to Request for Child Support and Alimony
If you expect that your spouse will seek child support or alimony against you, the most important thing you must guard against is to ensure that the children are not used as leverage in the negotiations.
It is not unusual for a parent who has primary custody to try to lower your visitation with the children even more in the hope that he or she will receive more child support. It is not unusual for you to un-wittingly go long with less time without not realizing what an impact it could have on your child support.
Ethical divorce attorneys do not use the children as leverage and do not allow a parent to do so. For this reason, child support should be simple and straightforward and there is rarely any need for extensive litigation on this issue so long as the income of one or both of you is not in dispute. If the income is in dispute, the involvement of a forensic accountant is often helpful to bridge that gap.
On the issue of alimony, if you are the one who are the higher earner, you should immediately evaluate whether or not your spouse has the ability to work and whether the job opportunities are out there in the workforce for her to become employed. This is often a delicate balancing test at the beginning of the case. Our attorneys have seen parents rush into these decisions and sometimes not move fast enough.
Whether or not you should make an issue of the other parent's ability to work and opportunity to earn money may require the involvement of a court approved vocational evaluator who will look at the issues of earning capacity and write a report on the other parent's ability and opportunity. This report is given to the family law judge.
It is essential that you use common sense when approaching alimony issues if your spouse has been unemployed for an extended period of time, especially if he or she has been a homemaker. That is because a lot of money can be wasted on vocational evaluators, only to find out that the best amount of money the other spouse could earn is minimum wage. Minimum wage is not particularly helpful to an alimony case if you are a high income owner or if the cost of childcare would meet or exceed your spouses earning capacity.
Attorney's Fees in a Family Law Case
Attorneys' fees are a common request in divorce and family law cases. But what is uncommon is for divorce attorneys to properly make the requests and lay out the necessary facts to the family court to give it the information necessary to make effective orders.
1. Spouse or Parent Requesting Attorney's Fees
If you are the spouse or parent that seeks attorneys fees, it is essential that you have the facts regarding the other parent or spouse's income as well as the overall assets of the community. Your separate property and the other's separate property is also a factor. Attorney fee requests require you, through your lawyer, to educate the court on the complete picture of your financial situation and that of the other parent or spouse. That means the court must know about your income, the other's income and all the potential sources of liquid or financial investments that exist from which attorney's fees can be paid. If you are the spouse who is making the attorney fee request, you must conduct immediate discovery (formal requests for information from the other spouse and subpoenas, when necessary) on the income and asset issues.
The court expects you to provide it with facts. If the other parent refuses to cooperate, you have to make the choice of whether or not you're going to ask the court to compel his or her cooperation or seek the court's request for the appointment of a forensic accountant to review his or her financials.
Our attorneys have successfully brought attorney fee motions on behalf of our clients who were the lower income earner. Attention to detail and an accurate presentation of the facts and income are are key to such motions.
2. Spouse or Parent Responding to Attorney Fee Request
Parents or spouses who face attorney fee motions in divorce cases are the higher income earners and, often, executives. Facing an attorney fee motion can be upsetting, both emotionally and financially. Fortunately, our experience has shown us that the best way to defend an attorney fee motion by your spouse is to neutralize it. In this article that we wrote on executive divorces, we go into how our attorneys can help you achieve that goal.
Courts generally do not like making property orders while a divorce is pending. Lawyers who bring emergency or immediate requests for orders in property cases must take the time and the care to make sure their request is supported by the facts and law. Here are some examples of situations where such requests are likely to be granted.
While the divorce is pending, the Family Court can make a variety of orders
These may include restraining one or both spouses from transferring, concealing, encumbering or disposing of property unless that is done in the usual course of business. These types of orders are intended to maintain the status quo so that one spouse cannot take advantage of the other during the divorce.
The court can also prohibit the cashing, borrowing against, canceling, transferring, disposing of or changing beneficiaries of any insurance or other types of insurance coverage and that includes life, health, automobile and this ability. This includes coverage for either spouse or their children. Such orders are common because they are automatic and are included on the back of the summons that is filed with the petition.
Therefore, once a spouse is served with a divorce or legal separation petition, he or she is on notice of these automatic temporary straining orders that go into effect. The automatic temporary restraining orders (called ATROs) which are now called the "Standard Family Law Restraining Orders" are not limited to what we have listed above. Our lawyers review these ATROs with our clients. We wish more lawyers did so.
The court may make emergency property orders
While a divorce is pending the court has the power to make any orders, including on an emergency basis, to determine the temporary use, possession and control of the spouse's real or personal property. Real property typically includes the residence or a rental property although that can also include a commercial building. Such orders are made to preserve the property and to avoid waste by one spouse.
Facts are essential in such cases and it is not enough to go to in front of an family law judge based on speculation or allegations that are not supported by actual facts. The best family attorneys who identify these issues in divorce cases confer with the other spouse or the other spouse's lawyer before bringing a court action. That is because most judges expect the lawyers and spouses to settle such issues before seeking orders.
The court may make orders regarding payment of liens or encumbrances
While a divorce is pending, the court has the power, separate from or in addition to support, to determine which spouse will pay liens or encumbrances on property. We often see such orders regarding a house's mortgage payment or day-to-day business expenses of a family owned business.
Although it is not common, the Family Court also has the power to order the sale of a property. The court can typically order the sale of property (the most common one being the family residence) if there is an unreasonable market for investment risk to the property. In real estate, this is often the default or foreclosure proceedings. Bringing requests for the sale of property without the right facts is a waste of a client's money and the court's time. Experienced divorce lawyers know this and explain to their clients what the court can and cannot do on an immediate basis.
Learn more about divorce hearings in California
We hope you found this information helpful.
While we have not listed every possible request for order that can be made during a divorce case, the above examples are the most common that our attorneys have seen and are the most commonly litigated in Family Court. Our experienced divorce attorneys are ready to help you.
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Representing yourself for a request for order hearing is rarely wise. If it is important enough to request a court hearing, it is important enough to be represented by an experienced and knowledgable family law attorney.
- B. Robert Farzad