In California, when there is a dispute regarding custody or visitation the parties must attend Family Court Services mediation prior to their court hearing. If the county is a recommending county such as San Diego and the parties do not reach an agreement, the Family Court Services mediator or counselor as they are now called, will make a written recommendation to the court as to what the custody and visitation should be. The judge will read this recommendation prior to the hearing and has the option of adopting it, modifying it or not following it all. For this reason, Family Court Services mediation should be taken very seriously.
For the most part, Family Court Services mediation is not in a sense what people think a mediation is. People have the impression that you are mediating just like you would if you hired a private mediator. In private mediation what is said is generally confidential and cannot later be brought in as evidence in court. This is not the case here where the mediator may write what the parties said. In fact, the mediator generally will either summarize what is said or will quote directly what the parties state. The mediator also has the ability to contact third parties such as therapists, teachers, principals, psychologists, physicians and child protective services and if these third parties are involved or have input necessary for the recommendation, there is a strong possibility they will be contacted and what they say will play a role in the recommendation. For example, if a party states a child is having problems at the school there is a good chance that the child’s teacher, principal or counselor may be contacted. If Child Protective Services is involved, they will surely be contacted. Therefore, it is important to be accurate in what you state and raise as to issues.
It is important to be prepared because if you are not it could be detrimental to you and the recommendation you receive. I always think first impressions are important and I think it is the same here. Therefore, you should be on-time, look presentable and be respectful to the other party and the mediator. If you look like you drink 8 beers or a bottle of wine the night before and got in at 2 am, are constantly interupting the mediator and the other party or seem hostile, it likely will affect the recommendation. It is also important that you only discuss issues dealing with custody and visitation. The mediator does not want to hear about financial or support issues since that is not their area to deal with. Those issues are for the judge to decide. Also, you should be prepared to discuss the child’s education, medical history, extra-curricular activities, etc. As such, it is important to know the teacher’s and physician’s names, the grades the child is receiving and activities the child is involved in. If your knowledge on these issues is limited it is tough to make a strong case for yourself to have custody or more visitation.
Having a custody and visitation plan that you can back up and raising all the issues is crucial. Obviously, if you do not have a plan the mediator will likely not give you a favorable recommendation but the plan should also be well reasoned and able to back up with facts. For example, if you request a mid week overnight visitation and the custodial parent lives in Carlsbad and you live and work in downtown San Diego you better be able to answer how you will get the child to school in Carlsbad at a reasonable time. Simply stating, “I’ll be able to” is probably not good enough. It is also important to raise all the issues in mediation so the mediator can make a recommendation regarding the issues. It is always frustrating for the judge to make a ruling on issues that were not raised at mediation. This sometimes can cause the judge either to send the parties back to mediation which causes delay or not rule on the issue at all.
There is an option to appear in person or by telephone for the mediation. I think one should appear telephonically only if it is absolutely impossible to appear in person. In fact, even if you live out-of-state, I think it is beneficial to make the trip to San Diego for mediation. Being face-to-face with mediator is more effective than via telephone.
Finally, if you reach an agreement, make sure that is what you want. There are many times where a judge gets the mediator report and it states that the parties reached an agreement. If that is the case, the mediator will simply state what the agreement is and not discuss the issues. Then the party meets comes to court and wants the judge not to adopt the agreement. The judge is put in a tough situation since there is no analysis of the issues by the mediator. In these cases, the judge will many times simply adopt the recommendation. Therefore, if you are going to agree make sure it is want you want.
If you are in a recommending county such as San Diego, Family Court Services mediation is such an important part of the custody/visitation process. It should not be taken lightly and a party should make sure they are prepared. If not, it could have a detrimental affect on the custody or visitation you desire.
DISCLAIMER: THE INFORMATION ABOVE IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL USE ONLY. IT IS IN NO WAY INTENDED TO BE LEGAL ADVICE AND SHOULD NOT BE RELIED ON FOR LEGAL ADVICE. IF YOU HAVE A LEGAL QUESTION YOU SHOULD SEEK THE ADVICE OF AN ATTORNEY.