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California: Prepare for Court-Ordered Custody Mediation

Anyone in court over custody and visitation in California must attend mediation if they can't reach a full agreement on their own.

In this free, court-ordered mediation (also known as mandatory mediation), the parents sit down together with a mental health professional, who helps them talk through their disagreements and develop a parenting plan. Once they agree on a plan, they can settle the case.

Some counties require parents to complete an orientation before mediation; check with your attorney or superior court.

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The basics of court-ordered mediation

Court-ordered mediation lasts no more than a few hours and is done in one or two sessions.

In that time, a court employee ― a psychologist, marriage and family counselor or social worker ― guides parents through a discussion of what might be best for their children in terms of legal custody, physical custody and a parenting schedule. Beyond helping the parents agree on a parenting plan, the mediator also works to reduce bitterness.

Courts want parents to make decisions together rather than let a judge decide. Mediation is an effort to move parents in that direction so they maintain their autonomy and don't congest the court system.

Typically, the parents and mediator are the only people in the room, but each parent can request to bring a support person who doesn't participate. Occasionally, mediators will also interview the children in the case. In situations with domestic violence or restraining orders, the parents are able to meet with the mediator one at a time.

Custody mediation is restricted to the topics of child custody and visitation. No peripheral issues, such as child support or divorce, can be covered.

If you want to discuss broader topics or meet for more than a few hours, you and the other parent can decide to pay for private mediation.

Two versions of court-ordered mediation exist: recommending and nonrecommending. Ask your superior court which it uses.

Version 1: Recommending mediation

Some counties use what's known as recommending mediation or recommending counseling. In these counties, mediators (also called recommending counselors) inform the court of what happens during sessions. The mediator shares a report with the parents, their lawyers and the court before the next hearing in the case.

If parents agree on a plan during recommending mediation, the report consists mostly of the agreed-upon points. Unless either parent objects within 10 days, the judge usually signs to create a final order, and the parents have successfully settled.

If parents do not reach consensus, the report will include the mediator's child custody recommendation and reasoning. The mediator may also suggest tools like restraining orders, a custody evaluation or child counsel. The judge takes the mediator's report into consideration, along with all other evidence, when making decisions in the case.

Recommending mediation is considered confidential because the resulting report can only be viewed by the parents, their lawyers and people affiliated with the court. However, parents must be aware that what they say in recommending mediation does not stay in the room and could be read by their judge, as well as affect their mediator's recommendation.

Version 2: Nonrecommending mediation

In counties using nonrecommending mediation, the details of what goes on during a session cannot be shared with the court.

If the parents do not decide on a parenting plan, the mediator notifies the court but does not provide a recommendation or any other information.

If parents do come to a full understanding, the mediator writes up their mutual decisions as a parenting plan and submits it to the judge for approval. If neither parent objects within 10 days, the judge signs the plan, making it a final order.

Preparing for court-ordered mediation

If you walk into mediation ready, you're much more likely to walk out with an agreement.

Bring at least one parenting plan and one custody and visitation schedule to your session, so you can demonstrate concretely what you feel is best for your children. You may want to bring multiple options, in case the other parent is more open to one idea than another. Your attorney can help you create these documents, or Custody X Change can walk you through the process step by step.

You can also bring items like report cards or medical records to help you express your concerns to the other parent.

Tips for parents going to court-ordered mediation

  • If mediators in your county make recommendations to the court, don't say or do anything in mediation that could hurt your request for custody.
  • Meet with an attorney beforehand or prepare on your own so you come in knowing where you're willing to compromise.
  • Dress neatly.
  • Remember your time is limited; arrive punctually and make points succinctly.
  • Keep your kids' interests and needs at the forefront of the discussion, rather than your own.
  • Don't raise your voice, get angry or interrupt.
  • Try not to speak negatively about the other parent.
  • Keep an open mind.
  • Be honest.
  • Take notes so you remember what was said.
  • Don't feel pressured into agreeing to anything you will regret.
  • Be forthcoming with any questions you have.
  • Read up on how to negotiate effectively.

How it compares to private mediation

While closely related, court-ordered custody mediation and private mediation have important differences. Private mediation is like a more comprehensive version of court-ordered mediation that you pay for.

Private mediation results in parenting agreements much more often than court-ordered mediation. A common estimate is that about 90 percent of families in private custody mediation reach agreement, compared to about 20 percent in court-ordered mediation.

One reason for the disparity is that both parents must agree to participate in private mediation. Another factor is the cost; when parents have invested financially in the process, they are generally more committed to making it work. Also, in private mediation, parents can take as much time as they need to work out their disagreements.

A private mediator will not share information with the court or anyone else regarding your negotiations, apart from the final agreement. The exception with any type of mediation is a revelation of child abuse, which must always be reported to authorities.

Tools for mediation

If mediation goes well, you could walk out with a parenting plan that will last until your children become adults. Are you ready?

Bring a parenting plan and multiple custody schedules to suggest. You might also bring a list of child-related expenses or entries from a parenting journal.

The Custody X Change app enables you to create all these items in one place.

Custody X Change makes sure you're prepared not only for mediation but for every step of your custody case.

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