Custody Mediation

Family Court Services is usually part of your local superior court. Family Court Services has mediators who help resolve disagreements between parents who are separating about the care of their children. Most superior courts have a Family Court Services program or other mediation program to help parents with parenting issues. Click to find the Family Court Services program in your court.

You do not have to pay for the mediators from Family Court Services.

If you and the other parent cannot agree on a parenting plan for your children, you must go to mediation to try to resolve your dispute. If you cannot agree in mediation, the judge will make an order at a hearing. Click for more information on:

• What happens in mediation?

• Mediators

• Guidelines for mediation

• Confidentiality of mediation

What happens in mediation?
Mediation can be a way to make decisions about your children without going to court. You and the other parent can make your own agreement for how you will take care of your children. The legal word for this agreement is “stipulation.” It is also called a “parenting plan” or a “parenting agreement” or a “time-share plan.”

Generally:

• The mediator meets with the parents together or individually. The mediator will ask questions to develop an understanding of the family history. In cases of domestic violence, you have the right to meet with the mediator separately and you can bring a support person to your mediation.
• The mediator and parents will identify the most important issues that need to be resolved. The mediator helps the parents to focus on developing a parenting plan that is in the best interest of their children.
• The mediator will share information on the needs of children of different ages and stages of development. The mediation may address legal custody, parenting plans, holiday and vacation schedules, transportation, and other areas that relate to the needs of the children.
• You and the other parent will consider the options and may resolve all, some, or none of these issues.
• Court-ordered child custody mediation sessions can last for different amounts of time in each court. Some courts are only able to offer parents 1-hour appointments. Others can work with parents during 1 or more appointments that last 2 to 3 hours each. Because each court has different resources available to help parents, this is an important question to ask when you set up your mediation appointment.

If you want more time with a mediator, you can contact a mediator in the community who can spend more time. Working with a private mediator will cost you money but it can be a valuable way to resolve your differences and work out a parenting plan that will support your children and work well for your family’s situation.

If 1 or both parents have lawyers, the lawyer may be involved in the mediation. If you have a lawyer, talk to him or her about whether you want him or her involved in the mediation and, if so, talk to the mediator about this. Some courts may not allow your lawyer in mediation, so ask your mediator about the rules in your court.

It could be very helpful to you to get legal advice before or after the mediation. It will help you understand your legal rights and responsibilities and develop options for reaching an agreement. So even if you are representing yourself in the court case, consider talking with a lawyer about the issues and the possible agreements you are reaching in mediation.

IMPORTANT! This information may not apply or be appropriate in cases of domestic violence or abuse. Read our section on Custody and Domestic Violence if domestic violence is an issue in your case.

Who are mediators?
A mediator:

• Usually has a graduate degree;
• Knows how the family court system works; and
• May also have information about community services that may be helpful to you.

California has special rules for conducting mediation. You can learn about them by reading rule 5.210 and rule 5.215 of the California Rules of Court.

Although many mediators are experienced in counseling, mediation is not counseling. A mediator meets with both parents and helps them try to agree on a plan that is best for their children. The mediator’s job is to:

• Listen to both of you.
• Be neutral.
• Help you look at different options.
• Help you decide when the children will be with each parent.
• Help you decide how future decisions about your children will be made.
• Help you consider the best way to protect your children’s safety and welfare.

Guidelines for mediation

• In mediation, you should both:
  • Treat each other with respect. You will both get a chance to explain your ideas.
  • Listen to each other and try to find real solutions.
  • Put the children first. Think about what they need and can handle.
• In some local courts, mediators make recommendations to the judge about child custody and visitation. If you and the other parent cannot agree on a parenting plan through mediation, the mediator is asked to give the court a written recommendation. This recommendation will contain the mediator’s opinion about what parenting arrangement will be in your children’s best interest. Both of you will also get a copy of the recommendation.
• In other courts, mediation is confidential and the mediators do NOT make a recommendation to the court about child custody and visitation. If the parents agree on any issues, the mediator may provide the court with a written summary that will include the issues the parents agree on.
  
  Usually, mediators interview both sides together. But if there has been domestic violence or there is a restraining order between the parents or other concerns about meeting together, the parents may ask to meet with the mediator separately. Sometimes, even when there is no domestic violence, the mediator may decide it is more appropriate and helpful to meet separately with each parent. The special rules about mediation allow the mediator to do this.
• Mediators will interview the children if it will help the parents to develop a parenting plan that is best for the children. Mediators are trained professionals and know how to interview children without making them choose between their parents or putting them in the middle.
• If 1 or both parents are not comfortable mediating in spoken English, make sure to ask the court for an interpreter for your mediation. In most courts and cases, your court will be able to give you a free interpreter. If you or the other side will need an interpreter, ask for one as soon as possible. That will give the court the best chance to find someone for you, or to let you know if you should bring your own interpreter. If you have to bring your own interpreter, make sure you bring someone qualified. It is NOT a good idea to have your children serve as your interpreter in mediation. In fact, your minor children will not be allowed to interpret for you. It is also important that the person you bring to interpret for you in mediation must be ready to translate everything that is said by everyone, as closely as possible, without adding new information or his or her own comments in the process. If you do not know how to find a trained interpreter, you can ask the mediator to help you.

Confidentiality of mediation

• You should get information from your mediator or the Family Court Services office about confidentiality and mediation.
• In some courts, mediators make “recommendations” about child custody to the judge when the parents do not reach an agreement in mediation. The mediator may include what you say in mediation in the report, which is sent only to the judge, to the other parent, and to his or her lawyer. In other courts, information from the mediation would not be shared with the judge.
• If a mediator suspects child abuse or has concerns about the physical safety of the children, he or she may need to report this to child protective services or the court.

If you reach an agreement in mediation
If you reach an agreement on your parenting plan, the mediator will usually prepare a written agreement for both parents to sign. If neither parent has a lawyer, the mediator or the parents will give the agreement to the judge to approve and sign. When the judge signs it, it becomes an official court order.

If you have a lawyer, talk to your lawyer about what you should do if you reach an agreement in mediation. Your lawyer may review the written agreement before you and your lawyer sign it and will then take care of getting the judge to sign it and file it with the court.

If you cannot reach an agreement in mediation
What happens after mediation depends on the court:

• There is usually a court hearing or settlement conference with the judge to resolve issues.
• The judge may make decisions on a parenting plan.
• The judge may order a child custody evaluation by a mental health professional to get more information before making a decision.
• In some courts, the judge may ask the mediator to make a recommendation.

Ask your mediator how the process works in your local court. The family law facilitator may also be able to answer your questions.

Even when you cannot reach an agreement on every issue in mediation, the process can help you narrow down the issues that you disagree about and settle the case later.

If you have to go to mediation (referred to in some courts that provide recommendations as “child custody recommending counseling”) with a person who controls or attempts to control you through force, intimidation, or the threat of violence, or if you have a restraining order, you have the right to ask to meet with the mediator (or child custody recommending counselor) separately from the other parent.  You may also bring a support person to mediation and orientation. The mediators are trained in the dynamics of domestic violence to protect your safety and the safety of any household member. Learn more about child custody mediation when your children’s other parent has been abusive.

If you have experienced domestic violence:

• Tell your lawyer, if you have one.
• Tell your mediator as soon as possible.
• Answer all of the judge or mediator’s questions about this issue.
• You can see the mediator without the other parent.
• You can bring a support person with you to your mediation and to court.

If a mediator suspects child abuse, he or she may need to report it. (But it is a crime for a parent to file a false report of child abuse against the other parent.) Ask your mediator for a list of places that can help you and your children.

• Get more information about child abuse.
• 50 Facts You Should Know About Child Abuse.
• Department of Social Services’ Office of Child Abuse Prevention.
• Find more help with domestic violence problems.

In some cases, the judge decides that it is in the best interest of the children to have a child custody evaluation. A custody evaluation is an investigation into the facts of the case. Usually, the investigation includes interviews with the parents, children, and other people who may have information about the situation, like teachers, doctors, other relatives, or counselors. It can also include other important reports that relate to the family, like court records, police reports, and reports from providers of anger management or parenting classes. The evaluator may also visit your home or the children’s school sites.

If the child custody case is ordered to evaluation
If the parents did not come to an agreement about all of their custody and visitation issues during mediation, the judge may order a custody evaluation. A custody evaluation generally takes up to 60 days. And, usually, the parents must pay a fee for this service.

The evaluator is a specially trained psychologist or other mental health professional. It could be someone from Family Court Services at your court (but not your mediator). Other times, the judge may appoint a private professional to do it.

In general, the evaluator:

• Meets with:
• Each of the parents by themselves and with the children,
• Both of the parents together, and
• The children by themselves.
• May talk to:
• The children’s teachers,
• The children’s doctor,
• The children’s daycare provider, and
• Other adults who know the children.
• May visit each parent’s home — and the children’s home, if they are not living with either parent.
• May require the parents to have a psychological evaluation.

When the investigation is complete, the evaluator will write up a report describing what he or she found about each parent, the children, and the family situation — what is good and what is not so good. Based on this information and the evaluator’s knowledge of child development and human psychology, he or she will make a recommendation to the court for a parenting plan. The parents will be able to read a copy of this report.

This report will be sent to the judge and the parents or their lawyers, and there will be another court hearing.

Read Child Custody Evaluation Information Sheet (Form FL-329-INFO) for more information on child custody evaluations.

First, if you have a complaint against a mediator or evaluator with Family Court Services, talk to the director of Family Court Services to find out how to make a complaint. Follow the procedures for filing a complaint in your court. If you are not happy with the result after you file the complaint, you can explain your complaint to the judge at the time of your hearing. Click to find the Family Court Services program in your court.

If your complaint is about ethical conduct or licensing issues, there are state licensing boards that address complaints about licensed professionals: