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.
Custody X Change is software that creates parenting plans for traditional and alternative methods of deciding custody.
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 attorneys 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 advantage to the court system is a lightening of the heavy caseload facing nearly every county.
The process goes like this: After filing for custody, the parents choose a private judge together. They sign a contract with the judge, which is confirmed by the county's superior court. From that point until a decision is rendered, the private judge has all the powers of a regular superior court judge. You may not change judges except in special cases like proven bias or conflict of interest.
Private judges usually charge hourly rates slightly higher than that of family law attorneys 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.
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 attorneys.
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 LGBT 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 each hire limited-scope attorneys and 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 often charge about half the hourly rate of family law attorneys 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 both parties approve of, it is signed by a judge and filed with the court to become a final order reached via settlement, which is equivalent to a final order reached through trial. 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 (see below) 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.
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 attorneys and other members of the "collaborative team."
The collaborative process can vary from county to 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 advisors. The specialists may work on behalf of one parent or for 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 of collaboration, though the timeline varies based on their ability to compromise. At that point, the parenting plan is filed with the local superior court to become a legally binding document.
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 attorneys 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 less billable hours.
- Privacy: All discussions are confidential, although court documents are not.
- 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 can be expensive because each attorney and team member needs to be paid, typically by the hour. 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.
Yet another option for parents with custody disagreements is a parenting coordinator. A parenting coordinator is a mental health or legal professional with in-depth training in mediation to whom parents turn for help making a decision. If the parents cannot reach consensus, the coordinator looks at the facts and decides for them.
The parenting coordinator role is designed to keep parents who frequently disagree from heading to court again and again. Coordinators (also known as a PCs, 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 disputes that arise.
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). While parents can assign any category in the stipulation, 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 coordinator 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 the amount of time a parent spends with a child, the coordinator usually submits a recommendation to a judge, who then makes the final 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 and a judge makes 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.
Some families prefer to decide family law issues, especially divorce, through religious courts. In the United States, this option 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 acts as arbitrators ― independent bodies officially appointed to settle disputes.
Custody is less commonly pursued through religious arbitration than 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 cannot recognize rulings they do not 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 forgo arbitrating custody or visitation, and to turn instead to civil courts or alternative resolution methods.
If you are interested in religious arbitration, start by speaking to an attorney who has knowledge of your religion's process.
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 attorneys present.
If you can't afford full representation, you can hire a limited-scope attorney to work on parts of your case. 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 it is when you decide it in a courtroom.
Unless you and the other parent agree on all aspects of custody and visitation, you will be trying to convince someone — the other parent, a private judge, a parenting coordinator or an arbitrator.
A parenting plan and schedule are great starts. You may also need to track the time you spend with your child, keep a log about interactions with the other parent, calculate who pays the child's expenses, and more.
The Custody X Change app enables you to do everything in one place. With a parenting plan template, custody calendars, a journal, an expenses tracker and beyond, Custody X Change makes sure you're prepared for any method of deciding custody in California. It makes sure you're prepared to get what's best for your child.
Custody X Change is software that creates parenting plans for traditional and alternative methods of deciding custody.