FAMILY CODE 213
How to seek affirmative relief in an opposition to a request for order
Family Code 213
Family Code 213 and Affirmative Relief in an Opposition to a Request for Order
Family Code 213 is an interesting code section. Family Code 213 is primarily a common sense statute that may at first seem counterintuitive. Let’s discuss it in more detail.
Family Code 213 text
Family Code 213 states:
(a) In a hearing on an order to show cause, or on a modification thereof, or in a hearing on a motion, other than for contempt, the responding party may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration within the time set by statute or rules of court.
(b) This section applies in any of the following proceedings:
(1) A proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.
(2) A proceeding relating to a protective order described in Section 6218.
(3) Any other proceeding in which there is at issue the visitation, custody, or support of a child.
There are layers of complexity within Family Code 213
Family Code 213 may seem obvious at first but there are a few layers of complexity to it.
First, this issue most often comes up in child custody proceedings where one parent files a request for a temporary child custody and visitation order and the other parent attempts to bring into the same hearing issues such as support. If parent number one files for child custody and visitation and parent number two wants to file a child support request, parent number two needs to file a separate request for order per Family Code 213. Since child custody and child support closely relate to each other, it does make sense for the family law judge to consolidate both hearings and therefore hear both issues at the same time.
But what Family Code 213 tells you is parent number two must limit the opposition to the child custody and visitation issues and if that parent wants the court to hear the issue of child support, he or she must file a separate request for order.
Does that create unnecessary work? Yes, but there is a logic to it.
Family Code 213 is about fairness
If one parent files a child custody and visitation request, that parent has to file and serve that request for order no later than 16 court days before the hearing based on current law. And that assumes personal service. If the service is in a manner other than personal, the code extends that timeline. These timelines exist to give the other party a reasonable opportunity to file and serve a response. If a parent can go forward with the support request in response to a child custody request for order, the parent who filed the child custody request has very little time to respond to the child support request. That is because a responsive declaration is due nine court days before the hearing based on current law and the service manner can change that timeline.
Therefore, Family Code 213 brings a fairness to the process by allowing either party who responds to a request for order a reasonable time to file and serve his or her response and prepare for the hearing.
How does Family Code 213 deal with attorney fee requests?
One issue I faced more than once was a question of whether a party in an opposition to a request for order on one issue that does not involve attorney fees, can request attorney fees? So imagine the first party files a child custody and visitation request for order. In the response, the other party opposes the child custody and visitation request and also requests attorneys fees against the first party. Is that proper? After all, attorneys fees is not the “same issue raised by the moving party.”
My opinion is may actually depend entirely on the statute the party who requests attorneys fees relies upon. This is where experienced family law representation really comes in handy. There is Family Code 2030 and 2032 which are what we call “need” based requests. There are sanctions based requests pursuant to Family Code 271. We also have several other code sections that allow attorney fee requests.
Family Code 213 has a couple of interesting quirks
Here are a couple of other interesting tidbits about Family Code 213:
1. The code refers to an order to show cause. An order to show cause is now called a request for order.
2. The code states it refers to divorce, annulment, legal separation, domestic violence restraining order actions and any other proceeding where custody, visitation and child support are at issue. I found this amusing because that covers about 98% of family law. So to what types of cases does it intend to not apply?
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