Mediation and Child Custody: Process Description and Preparation Tips

Mediation and child custody go hand-in-hand in contested California custody matters. Generally, mediation allows parents to come together to discuss important issues regarding child custody, visitation, and support. More specifically, the goals of mediation are to:

• create a parenting plan in the best interest of the children that promotes time spent with both parents; and
• offer solutions and/or suggestions to ensure the parenting plan’s success.

Mediators provide parents with communication tools to reach an agreement. However, mediators do not provide legal advice, nor tell parents what to do about child custody issues. Instead, a mediator will identify issues and assign an allotted time for the parties to discuss them in order to reach a resolution. In addition, at the conclusion of the session, if the parties have resolved their issues, the mediator will prepare an agreement. 

Mediation for Child Custody Mandated By the Court

Most California family law courts have a department called Family Court Services. Family Court Services provides mediation services to help resolve disagreements between parents regarding custody, visitation, and other issues concerning children.

Furthermore, Family Code Section 3170 requires parties to attend mediation if there are contested issues pertaining to children. In addition to mediation, some courts also require parents to attend a pre-mediation or parenting class. Currently, parties who utilize the services of mediators from Family Court Services do not have to pay; however, this was not always the case.

Differences by County

Unfortunately, the mediation process can differ greatly amongst counties. For example, in many California counties, attorneys are not allowed to be present during mediation. Therefore, there is typically little benefit to hiring an attorney for this process.

Further, some counties have specific local rules that define the mediation process. For example, Ventura County’s Local Rules 9.30-9.35 outline its mediation procedures. The local rules for Ventura County not only require both parties to attend mediation, but also any children over age six who are the subject of the dispute (LR 9.32F)! Thus, because of these differences between counties, it’s important that you familiarize yourself with the mediation process in the county in which your case is filed.

Overview of the Mediation Process

When a parent files a Request for Order (RFO) with the Family Law Court requesting custody and/or visitation orders or modification of an existing order, the court will set a mediation date. The purpose of mediation is to try and resolve the dispute before the matter goes in front of a judge for a formal hearing. However, if the parties cannot agree in mediation, a judge will make an order at a hearing.

In most courts, a mediator will make recommendations to the judge about child custody, visitation, and other issues pertaining to children. If the parents are unable to reach a parenting plan agreement through mediation, the mediator will provide the court their own written recommendation and opinion. This recommendation will include a suggested parenting arrangement the mediator believes to be in the children’s best interest. In the majority of cases, the judge will issue an order consistent with the mediator’s recommendation. Finally, both parents will be given a copy of the recommendation.

Confidential Mediation

Although less common, in some courts mediation is confidential and the mediator does NOT make a recommendation to the court. Mediation in these counties has no effect on the judge’s final decision, should the matter go to hearing.

Mediation and Child Custody: Step by Step

The mediation process as a whole is straightforward. Typically, it involves the following procedures:

1. Initial Meeting with the Mediator

During the initial meeting with the mediator, the group will discuss each of the party’s roles. For example, the mediator will describe how they will act as a neutral party helping the parents resolve issues of child custody and visitation. Then, the mediator will likely inform the parties about the different discussion techniques they will use. Plus, they will outline procedures in the event the parties do not reach an agreement.

2. Identify Issues Regarding Child Custody

Next, the mediator will identify the issues at hand. Usually, these contested issues have already been outlined in either the moving or responsive paperwork filed with the court prior to mediation. That said, during the mediation process, there may be other issues that the parties want to bring up. Whatever the case, the mediator will assign an allotted time to discuss each issue. At this time, each party can express his or her feelings about each concern.

3. Discuss Child Custody Solutions

After laying out all the issues, the mediator will ask the parties how they would like to resolve them. Often, the mediator will speak with each party privately. Then, they will bring the parties together for one final discussion. However, the mediator will not provide direct solutions for resolving the issues. Instead, they will provide the parties the communication tools to do so themselves.

4. Prepare a Child Custody Agreement

If the parties reach a solution, the mediator will help them formalize a written agreement. That said, parties should not sign the agreement without reviewing it first to ensure it reflects the appropriate resolutions. On the other hand, if the parties were not able to reach an agreement, the mediator may, in “recommending counties”, prepare a formal recommendation to submit to the judge for consideration and ruling.

Preparing for Child Custody Mediation

As a parent, it is essential to prepare for your child custody mediation session. Also, attend mediation with an open mind. Do not go to mediation believing that there is only one solution to resolve your issues. Instead, come prepared with several options! Most importantly, make sure to listen to the other parent and their concerns. In summary, be sure to bring the following items to your child custody mediation:

• Any existing court orders;
• A list of issues you would like discussed;
• The right attitude; and
• A list of resolutions to your issues.

What to Say in Custody Mediation

After meeting with the mediator one-on-one, both parties may meet with the mediator together. During this time, do not verbally attack the other parent. Doing so can create a hostile environment and lead to a breakdown in the discussion. Instead, speak with words that reflect positive cooperation. For example, use the phrase “our child” instead of “my child”. Further, if you feel frustrated with the other parent, ask to take a break to recollect your thoughts and feelings.

Child Custody Mediation Tips

Before you attend child custody mediation, review the following tips to keep them fresh in your mind:

1. Remember to identify your child’s needs and provide resolutions that will meet them.
2. Do not speak negatively about the other parent or their loved ones during mediation.
3. Do not let your feelings cloud your judgment when making custody or visitation decisions.
4. Make sure you are prepared to discuss a parenting plan.
5. Be flexible in developing a parenting plan that meets the needs of your children and reasonably accommodates each parent.

Contact A People’s Choice for more information on preparing for child custody mediation in California. Also, consider hiring our services for assistance creating and filing a written agreement. Call today at 1-800-747-2780 to learn how we can help.