Child custody and visitation disputes that are submitted to the court for determination are first required to go through court ordered mediation. Depending on the county, the court may automatically send the parties to mediation prior to the court hearing or the parties may first have to appear before the court to then be ordered to mediation.
The court ordered child custody mediation is mandatory and both parties are obligated to attend. Family Code section 3170(a) states, “(a) If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.”
If one or both parties fail to attend the ordered mediation, the court may fine the party who failed to attend mediation and the court will likely reorder the parties to mediation. The court is not likely to proceed with a child custody/visitation hearing without the parties participating in mediation. If a party repeatedly fails to participate in mediation, the court could prohibit that party from participating in a custody/visitation hearing.
Attorneys and third parties are not permitted to attend the mediation. A limited exception to attendance is that children of the parties that are of a certain age (14) and/or maturity may be allowed to participate in the mediation and to express their wishes as to custody and visitation. The mediator that conducts the mediation is an individual employed by the court and has met the minimum requisite educational standards in the fields related to marriage, child behavior, and/or family relationships.
At mediation, the parties will generally sit and discuss together the issues of custody and visitation with the mediator. The parties will likely be kept separate when there are issues of child abuse and/or domestic violence. The mediator will prepare an agreement if the parties are able to come to a full or partial agreement on issues regarding custody and visitation. The agreement is then forwarded to the judge assigned to that case for it to be made into a court order. The issues that remain unresolved after mediation are to be litigated before the judge at a hearing.
The mediator may also make recommendations to the judge on what the mediator believes is proper custody arrangement. There are some counties including Orange County in which the mediator does not make recommendations to the judge. The mediator could also recommend that the parties attend another mediation session for multiple reasons including limited time that did not allow the parties to properly discuss the issues and/or the mediator believes the parties would benefit from another mediation session. The mediator could also recommend a child custody evaluation by a court appointed investigator pursuant to Family Code section 3110 or a court approved psychologist/expert pursuant to Evidence Code section 730 on cases where there are more serious issues involved.
If you are considering or are presently involved in a custody dispute or have an Orange County child custody mediation and need help, please contact us to schedule a consultation.