6 Alternative Ways to Decide Custody in California
Often, when people think of a child custody dispute, their minds go straight to a courtroom complete with lawyers and a judge. While traditional litigation is one way to decide custody, other options are growing in popularity. See if one of the following alternatives might work for you.
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1. Private judging
California is one of a small number of states where family law cases can be heard by what have been nicknamed "private judges." In this arrangement, both parties agree on and pay a judge to rule in a case.
Private judges are technically temporary judges given authority by the courts to decide a specific case. They are usually lawyers or retired public judges, and they must remain neutral and follow all state and local statutes.
The advantages of a private judge include:
- Less time between hearings
- A more relaxed environment
- Assurance you will have the same judge the entire process
- More personalized attention, therefore a good possibility of settling
- Potential to stay out of public view
While cases heard by private judges are still public record (apart from certain confidential files) and hearings remain open to the public, sessions can be held in offices or remote locations rather than a courtroom.
The process goes like this: After filing for custody, the parents sign a contract with the private judge they've agreed on. Once the contract is confirmed by the superior court until the case has a final decision, the private judge has all the powers of a regular judge. The parents may not change judges except in special cases, like when bias or conflict of interest is proven.
Private judges usually charge hourly rates slightly higher than that of family lawyers in the area. Parents are initially responsible for deciding how to split the fees, but the judge can later order a redistribution.
Remember that a private judge is no less serious or more lenient than a traditional judge, and make sure to prepare for court accordingly.
2. Private mediation
When parents have common ground and are able to interact civilly, many custody experts recommend private mediation as a way to reach a conclusion quickly and confidentially without going to court or paying lawyers.
The custody mediator serves as a neutral party who helps the parents find a solution to their disagreements and file it with the court in the form of a parenting plan. He or she sits down with the parents together and guides them through their parenting plan options and legal paperwork, helping them discuss and compromise along the way.
Some mediators specialize in areas that may help them better understand your situation, such as Christian mediation or LGBTQ mediation.
The vast majority of private mediation cases reach settlement, on average within a few months. If parents are only able to agree on certain items, they can go to court to decide the rest. The reverse is also true; parents already litigating sometimes go to mediators to discuss the points where they feel able to compromise.
Private mediators tend to charge about half the hourly rate of family lawyers in their area. Factor in that parents typically split the mediator's fees, as opposed to each paying a separate attorney, and the savings can be significant. Some parents also hire lawyers for guidance and to review documents drawn up by the mediator. Lawyers do not typically attend mediation sessions.
One advantage of private mediation is that all discussions that take place are confidential, unlike statements given in a courtroom. Even in mediation, though, documents filed with the court are generally public record.
If mediation results in a parenting plan, it is filed with the court and becomes a final order once a judge signs off. If ever the parents want to make changes to the order, they can reach an agreement on their own, return to mediation, try collaborative law or litigate.
Private mediation is not ideal for cases with complicating factors like domestic violence, criminal records or significant income disparity. For more straightforward cases, it is becoming an increasingly popular option.
3. Collaborative law
Collaborative law is often described as a midway point between mediation and litigation. Each party is represented by a lawyer, but everyone involved commits to staying out of court. The parents work toward a parenting plan through a series of meetings with their lawyers and other members of the collaborative team.
The collaborative process can vary by county. In general, it begins with each parent choosing a collaborative attorney, who can then recommend other specialists to join the team. These may include mental health professionals specializing in divorce or child custody, as well as financial advisers. The specialists may work on behalf of one parent or both.
Once everyone involved has agreed to confidentiality, honesty and solving issues outside of court, they hold a series of sessions to discuss items of contention one by one. At times, some members of the team meet separately; at others, the entire team comes together.
Often, parents reach agreement in six to nine months. At that point, they file the parenting plan with the superior court to make it legally binding.
In rare cases, parents are unable to compromise, so they cancel their collaboration contract and go to court over the items that remain disputed. In this case, all members of the collaborative team are required to withdraw, and the parents have to find new lawyers in order to protect the confidentiality of the collaborative process.
Potential benefits of using collaborative law to decide custody include:
- Transparency: The parties agree not to withhold information.
- Speed: Decisions can be made quickly when everyone meets in one room and there's no waiting for court dates.
- Cost savings: Faster resolution means fewer billable hours.
- Privacy: All discussions are confidential (though court documents aren't).
- Control: You make your own decisions instead of a judge.
- Family consensus: Reaching your own agreement can bring more commitment and satisfaction.
Compared to mediation, collaboration is expensive because each attorney and team member needs to be paid. Still, collaboration is usually much cheaper than going to trial because it produces decisions relatively quickly.
Attorneys often recommend the collaborative process because it guarantees a legal professional looking out for you; a mediator, on the other hand, works with both parties and does not give individual legal advice.
Like with private mediation, families with custody disputes complicated by substance abuse, domestic violence or criminal issues do not make ideal candidates. Unlike mediation, collaboration can be a suitable setting for couples with large income disparity because each partner has a lawyer to protect his or her rights.
4. Parenting coordination
Another option for parents with custody disagreements is a parenting coordinator (PC) — a mental health or legal professional trained in mediation. Parents turn to a coordinator for help making a decision, and if they can't reach consensus, the coordinator decides for them.
The PC role is designed to keep parents who frequently disagree from heading to court again and again. PCs (also known PPCs or child custody special masters) can be used during the litigation process to decide on a parenting plan or after final orders have been issued to resolve later disputes.
Both parents must consent to give decision-making power to their coordinator, and they sign a stipulation specifying what kinds of decisions will be in the coordinator's purview for what period of time (usually a year or more). Decision categories commonly assigned to the coordinator include:
- Holiday scheduling
- One-time changes to the parenting schedule
- Extracurricular activities
- Health care
When parents request the PC decide an issue, he or she gathers information from the parents by email, phone or in-person meetings. He or she can also review court documents, bring in consultants, or talk to the children, therapists, teachers or other people familiar with the family.
For disputes about major issues like religion or how much time a parent spends with a child, the coordinator usually submits a recommendation to a judge, who then makes the decision. For less impactful issues, the coordinator makes the decision and submits it to the court for entry. In this case, if a parent wants to object, they can file a motion with the court to have a judge make the final call.
Using a parenting coordinator can save high-conflict families significant money by keeping them out of a courtroom, but it comes with its own costs. Coordinators charge $200 to $500 an hour, and parents decide up front how they'll split the fees. Be sure to interview several coordinators to find one whose fees, style and availability work for you.
5. Religious arbitration
Some families prefer to decide family law issues, especially divorce, through religious courts. In California, this is most common in Judaism and Islam.
In these cases, families turn to rabbis, qadis or imams to look at the facts and make decisions following their religion's laws and customs. The religious representatives act as arbitrators ― independent bodies officially appointed to settle disputes.
Arbitration for custody is less common than arbitration for divorce. This is because either party can request a trial if they do not like a custody decision made via arbitration. Civil courts sometimes confirm rulings made by religious tribunals, but they can't recognize rulings they don't consider to be in the best interest of the child.
Another reason California parents don't often take custody issues to religious courts is because religions many times rule based on a parent's sex. For example, in Islamic law, the father receives sole legal custody of the children as standard. In Judaism, physical custody of a child over six years old typically goes to the parent of the same sex.
These factors lead most parents to turn instead to civil courts or alternative resolution methods.
If you're interested in religious arbitration, start by speaking to an attorney who has knowledge of your religion's process.
6. Informal negotiation
If parents are able to negotiate calmly, they may be able to draft a parenting plan and schedule without the help of a neutral professional. They might reach an agreement on their own or with lawyers present.
At a minimum, you should have a legal professional review your settlement documents because even one small error can stall proceedings or cause problems down the road.
Preparing for alternative dispute resolution
Preparation is as important when you decide custody through an alternative method as when you decide it in a courtroom.
You'll still be trying to convince someone — the other parent, a private judge, a parenting coordinator or an arbitrator.
A proposed parenting plan with a custody schedule presents your argument persuasively. You may also want to present messages exchanged with the other parent, a log of important interactions with the other parent, your child's expenses, and more.
The Custody X Change online app lets you create all of this in one place.
With a parenting plan template, customizable visitation calendars, parent-to-parent messaging, a parenting journal and an expense tracker, Custody X Change prepares you for any method of deciding custody in California.
It empowers you to get what's best for your child.