The California Family Code allows courts to issue orders removing a spouse from a home. These are commonly referred to as “kick out” orders or “exclusive use and possession” orders. Certain circumstances compel a court to make these kinds of orders. This blog post will discuss these circumstances. It turns out that the threshold required for a kick-out order differs depending on whether or not the application to the Court is brought in an ex parte (i.e. emergency basis) or if it is brought pursuant to a noticed motion.
Ex Parte Kick Out Orders
California Family Code § 6321 reads, in relevant part, as follows:
“The court may issue an ex parte order excluding a party
from the family dwelling, …only on a showing of all of the following:
(1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.
(2) That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party.
(3) That physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party.” (Fam. Code, § 6321; emphasis added.)
As set forth in subpart (2), there must be an assault or threat of an assault for there to be a kick order granted on an ex parte basis. If there is no assault or threat of an assault, the request for a kick out order must be denied.
Kick Out Orders After a Noticed Motion
While the requirement for assault or a threat of assault exists in ex parte proceedings, California Family Code section 6340 imposes a less stringent requirement after notice and a hearing. Where there is “notice and a hearing…the court may issue an order described in Family Code section 6321 excluding a person from a dwelling if the court finds that physical or emotional harm would otherwise result to the other party…or to a minor child of the parties.” In other words, there is no need to show that there was an assault or a threat of assault.
Deciding whether a request to remove a party from your residence is appropriate is very fact specific and requires a thorough analysis of your case and the law. Before you take steps to file a request to remove a party from you residence you should discuss your case with a qualified family law attorney. If the other party is seeking an order excluding you from the family home, you should act quickly to protect your rights. Failure to do so could have long lasting effects on you and your family.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding “kick out” orders. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.