Kick-Out Orders – Family Code 6321

A kick-out order, formally an order excluding a party from the family dwelling, lets a court remove one spouse or partner from the home even when both have a legal right to live there. It is one of the strongest tools in a domestic violence case because it changes who sleeps where that same night.

Under California Code Family Code § 6321, the court may issue the order on an ex parte basis, meaning without the other side present, if the requesting party shows three things: that he or she has a right under the law to possession of the home; that the party to be removed has assaulted or threatened to assault the requesting party, or another person under the requesting party’s care, custody or control, or a minor child of either party; and that physical or emotional harm would otherwise result. The order does not decide who owns the home or who will keep it in the divorce. It decides only who may be there while the restraining order is in effect.

Because the order is drastic, courts expect a specific, sworn account of what happened and when. A general statement that the relationship is bad will not be enough. If you are seeking the order, write down the incidents with dates. If you are defending against one, the hearing on the temporary order is your opportunity to tell the other side of the story, and it should not be missed.