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"Throw the Bum Out!!!": The Kick Out Order

By Jennifer Jackson, JD (Family Law News, Judicial Survey, Vol. 15, No. 4)

Judicial Participants:

Alameda County: The Hon. Roderic Duncan
San Mateo County: The Hon. George Taylor
San Francisco County: The Hon. Lee Baxter

The basics

Excluding a person from the "family dwelling or dwelling of another" is probably the most routine, the most difficult, the most misused, the most abused, and the most confused procedure in family law practice.

While the authority is found in California Civil Code sections 4359(a)(3), 5102(a) and 7020(a)(2) and the procedure in California Code of Civil Procedure sections 527, 546 and 547, the method and ease of obtaining a "kick out" order - particularly ex parte - vary wildly from county to county and from judge to judge.

The showing required on ex parte application is "the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody or control of the other party, or any minor child of the parties or of the other party, and that physical or emotional harm would otherwise result to the other party or any person under the care, custody or control of the other party, or to any minor child of the parties or of the other party as provided in section 5102." (Cal.Civ.Code, §4359 (a)(3).) Under 7020, the authority is limited to excluding a party from the dwelling of the party who has the care, custody and control of the child, and the showing is limited to harm to the other party and the subject child.

There is some confusion: Civil Procedure section 546, which deals with prevention of domestic violence, requires a declaration that the moving party has a colorable right to possession of the premises, while 4359 (under which orders are made pursuant to section 546) authorizes an exclusion "regardless of which party holds legal or equitable title to the property".

The showing required on application and hearing is simply that "physical or emotional harm would otherwise result" (Cal.Civ.Code, §5102; see also Cal.Code Civ.Proc., §547.)

A residence exclusion cannot be granted without notice to the other party absent a declaration from the moving party that "it shall appear from facts shown by affidavit or by the verified complaint that great or irreparable injury would result to the applicant before a matter can be heard on notice" (Cal.Code Civ.Proc., §527(a)).

Even though 527 specifically excludes 4359 applications from its further notice requirements, it is good practice (and often required by local rule although no longer required by section 15 of the Judicial Standards) to include the following:

  1. Method/details of actual notice to and attempts to notice the other party;
  2. If successful: the response of the other party;
  3. If unsuccessful, why further efforts would be unreasonably burdensome and futile;
  4. If notice not attempted, the reason(s) why: i) Frustration of the purpose of the orders sought; ii) No significant direct burden or inconvenience to the adverse party; iii) Danger to the moving party.

A residence exclusion granted without a hearing must be set for a hearing not later than 20 days from the granting of the order, or if good cause appearing, 25 days from the date of the order. Id. Therefore, you must remember to apply for an extension of your restraining orders when the hearing is continued.

Now, let's hear from the judges.

Ex parte

San Mateo: The ex parte kick-out is not as rare as you might think. I have seen an increase in recent months, induced by drugs, alcohol or maybe the changed economy. There seems to be a lot more stress out there.

I require written evidence of recent events coupled with a pattern of conduct with enough of a sense of reality about them to give them a sense of urgency. Usually this comes to me in the form of a lengthy handwritten diatribe in lurid detail that would have been hard to make up ["he took the frying pan off the burner and held it to my leg"]. I also routinely look to who is on the lease, who is paying rent.

I prefer in all cases to contact the adverse party and set up a hearing within the following 72 hours unless there is a very real possibility that the "perpetrator" will be spending an indefinite period in our county jail due to the nature of the alleged acts, and I can't be reasonably certain that neither person will be seriously injured.

It is difficult for me to grant these on the basis of non-physical events. The court is in a tough position: you are dealing with very human problems, and are fortunate if you can get a grasp of the situation as quickly as the ex parte application requires. Sometimes this is ephemeral: you have a sudden flash of insight that immediately evaporates, which is often the only glimpse of truth you get.

The risk is that a second ex parte request from the excluded one will pop up in a day or so with the dreaded "other side of the story". When this happens, I call them both and schedule a hearing within 24 hours. I rarely have a problem getting them together to sort it out.

Alameda: When I started doing this, I swore I would never grant an ex parte exclusion, based on the statutes and what was being extolled in judge's school, et. al. Then the DVPA came along, which in my view encourages a judge to exclude "perpetrators" almost like taking a drink of water. When the same judge does DVPA and dissolution requests, you have to ask yourself: why grant an exclusion so easily for a singled battered person but not a battered spouse? Should there be more protection under one act than the other? My answer is no.

However, the application must be accompanied by affidavit and documentary evidence and must comply with the statute(s) both in making the proper showing, and notice. It is amazing how many applications come before me without any declaration regarding notice or waiver of notice.

The preferred procedure is to get both parties in quickly. No one wants to come home to three squad cars waiting to throw you out of your Piedmont home and the entire neighborhood gathered on your front lawn to watch.

San Francisco: I rarely grant an exclusion ex parte. In those cases where I have, the showing was absolutely convincing [the "who could ever have made this up?" test] and in writing.

The best evidence is in the form of hospital reports, police reports, and - if the declaration alleges only threats of harm - a clear sense of urgency involving weapons and/or severe emotional harm. I require less of a showing for non-marital couples, and it does help if the petition alleges that the moving party is the sole owner or lessor of the property. However, I have not found - as is feared by some - that these requests are often abused by using them as "cheap evictions".

I concur with San Francisco and San Mateo in requiring affidavit and documentary written evidence at the ex parte stage, together with evidence of compliance with the notice (or waiver of notice) procedure.

If I am not completely convinced about the urgency but reasonably certain that action needs to be taken quickly, I will call both parties in within the next day or two. Generally I give the excluded person time to make arrangements, and usually he or she readily agrees to move out by the suggested date.

I agree with San Mateo that the dreaded "other side of the story" can often give you pause about ever granting another ex parte exclusion in what remains of your judicial career. I would also add that the attorneys who take advantage of judges in making these requests will never be trusted again if their request turns out to have been improperly granted.

Noticed motion

San Mateo: If there is a clear breakdown in the relationship and the love and affection that prompts people to live together, the circumstances no longer justify having them remain in a form of "involuntary servitude". I will rarely keep two people in the same residence when one objects. The only circumstances under which I will leave them together over one person's objection is where there are no children and the layout of the residence permits privacy. Where there are children, it is almost never in either party's best interest or in the best interests of their children to have the parents occupy the same residence.

For example, where we have an older couple who have lived together for many many years, it is apparent that they are not going to resort to violence with one another and it is physically possible for each to maintain his or her separate existence, I may leave them both in the residence pending a sale or trial. It is more likely that an elderly person would have fewer resources and alternatives.

Where this is not the case but there are insufficient allegations of violence, assault, and the like, I may be forced to choose the party to exclude. When this occurs, I then require evidence of factors such as who is the greater wage earner, who is the primary parent, whether the children are attending a particular school, and so on. I admit that where children are involved, you are indeed making a de facto custody order on the spot.

Where this is the case, I must be very careful and be presented with good evidence to support it; otherwise, I run the risk of seeing my photo in the local newspaper under the banner headline: "Judge Gives Custody to Molester."

San Francisco: By application on noticed hearing, I have never required two parties to remain in the residence together. If there is going to be a dissolution, the parties' lives are going to have to be separated, and if one party wishes this to happen pendente lite, he or she is entitled to it.

I have often been asked to allow a party to stay and live upstairs and the other downstairs; I will deny that when the other party objects. Occasionally, both parties have stipulated to maintain separate residences with definite parameters and boundaries within the family residence, and I have permitted it.

In that San Francisco mediators make no recommendations to the court regarding custody, I am in a more difficult spot where children are involved and both parties are requesting that the other to be excluded. This has yet to come up in my courtroom, but were the situation to come before me, the litmus test must be my best impression at the hearing as to who is the primary parent. Other factors might be whether one spouse is not working, where the children go to school, and so on. In reality, where the parties submit this issue to me without the assistance of a mental health professional as to the appropriate situation for the children, I have to be at the ready to make a decision based on what is presented to me, and if a de facto custody order results, so be it.

Alameda: "I want him out of the house" will not do it. However, respecting the family law policy that inflammatory declarations are not particularly helpful, on a noticed motion I will permit the declarant to make the request based on evidence to be presented at the hearing, and then permit the parties to stipulate at the hearing or the declarant present his or her evidence orally.

The hardest people to exclude are elderly gentlemen, who promise to sleep in a different bedroom, and so on. However, I am not going to make two people stay together in the same residence against one person's will, even where no violence is alleged.

Conclusion

It appears that there are two standards for granting a residence exclusion: one for the ex parte hearing, which is generally a high standard, and one for the noticed hearing, which is minimal. The policy behind the easy access to a residence exclusion following a hearing seems to track the policy behind the easy access to status dissolution as expressed in In re the Marriage of Fink (1976) 54 Cal.App.3d 357, 364 permitting the "prompt severance of a marriage relationship which has proved unworkable."

If it is your sincere intent to avoid inflammatory declarations, consider on noticed motion simply making the request based on oral evidence to be presented at the hearing.

In any case, judges always prefer a hearing, and will never forget you if you make a successful but inappropriate request for an ex parte exclusion that later comes back to haunt everyone in an embarrassing or tragic manner. You are advised to use this avenue sparingly and wisely.


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