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San Diego Divorce & Pets
In San Diego, California, Dogs, Cats, Birds, Fish or any other Animals are protected under the California Family Law Code. A new law, effective January 1, 2008, allows for an ex parte [emergency hearing] on good cause for an order enjoining a parties access to their pets pending a noticed hearing. There are several courts in San Diego County which hold hearings in which this relief can be sought, ideally with the assistance of a San Diego divorce lawyer. These include the two court houses in San Diego, California as well as the court houses in Vista, Chula Vista and El Cajon. Ex parte hours are different for each court house as are the procedures for the emergency hearings. In San Diego, at the main family law court house, the procedure is to call the Clerk of the Court the day prior for the file to be sent directly to the appropriate court room. There are strict rules for notice, pleadings, documents, orders, declarations and procedures for appearing on an emergency basis. Most emergency requests are denied and, if the Judge feels that the facts merit, the Judge can issue an Order Shortening Time which gives a hearing in a much shorter period of time than would normally be set. In El Cajon, the file is requested on the date of the hearing in the Clerk's Office and then sent to the court room. Always verify the procedures prior to appearing ex parte as the rules change frequently and the information in this article may not be accurate for the time period of your case as this is an article on the internet.
The Family Law Code that the San Diego Judges apply in these cases is Section 6320. In this section, there must be a showing of good cause. Good cause is not definable except as determined by a Judge however the below would certainly be the minimum in an emergency hearing. This would be documentation of harm or a threat of harm and would include photographs, third party declarations of physical abuse, a police report if applicable, a report to the ASPCA if applicable, a statement from a licensed veterinarian and any other evidence which could be produced. This can also apply to concealment and non access or molesting or attacking and striking. The law is very specific and it is crucial to obtain a legal opinion from an attorney prior to appearing in court on an emergency basis since sanctions could be granted if the request was unreasonable. In this section, the Court may include in a protective order a grant to the requesting party that they have the exclusive care, possession or control of any animal owned, kept or held by either of the parties or a minor child residing in the residence or household of either the petitioner or respondent. There needs to be proper service and this is a very technical issue. Violation of the restraining order after proper service would be punishable by civil or criminal penalties.
At the emergency hearing, the Court will either deny [most likely] or grant the emergency request. The Court will then either deny or grant an Order Shortening Time. This would be based on the documents and pleadings submitted for the emergency hearing so these need to be accurate, comprehensive and complete. The Court will then set a hearing (Order to Show Cause) and make a decision. On, or before, July 1, 2009, the Judicial Council of the State of California shall modify the criminal and civil court forms to be consistent with this new law of January 1, 2008.
In addition, most pets are community property and will need to be considered in any dissolution. The rules would apply as to property, however, so the time period of when the pet lived with either party or both would be very significant in the legal analysis. Many persons feel towards their pets as members of their families and this is a very important issue to discuss with a lawyer in any dissolution given that this is truly a property division and not a custody and visitation issue although many pet owners feel that this should be changed. Our divorce attorneys can assist in the preparation of a Marriage Settlement Agreement which includes pets so that there are no misunderstandings and to lessen tension and conflict as much as possible.