Child Custody Mediation

Child custody mediation is a process which can help parents to make decisions about how they will share custody of their children. The mediator meets with the parents together or individually to 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.

During child custody 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 mediation may address legal custody, physical custody, parenting plans, holiday and vacation schedules, transportation, and other areas that relate to the needs of the children.

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 one or both parents have lawyers, the lawyer may be involved in the child custody mediation process – this depends on local rules. If you have a lawyer, talk to him or her about whether you want him or her involved in the child custody mediation process and, if so, talk to the mediator about this. Some courts may not allow your lawyer in mediation, so ask your attorney or the mediator about the rules in your court.

The Mediators

A mediator most often has a graduate degree; is familiar with the how the family court system works; and, may also have information about community services that may be helpful to you. 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 parents, be neutral, and to suggest options for any disagreements.

Child Custody Mediation Guidelines

A parent must be very careful in their conduct and in what they say at child custody mediation since, the mediator’s report could contain information about a parent’s conduct during mediation. In general, you should treat the other parent with respect; listen and try to find real solutions; and put the children first by considering their needs and what they can handle.

Mediator’s Recommendation

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.

Mediation and Domestic Violence

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.

Interviewing Children

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 one or both parents are not comfortable discussing child custody issues in English, they may ask to bring an interpreter to mediation.

Confidentiality Mediation

You should get information from your mediator or the Family Court Services office about confidentiality and the child custody mediation process. Again, your attorney may have this information. 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.

Reaching an Agreement

If you reach an agreement on your parenting plan, the mediator will usually prepare a written agreement for both parents to sign. After which it is presented to a judge for his signature. If you cannot reach an agreement in mediation, you will attend a court hearing or settlement conference with the judge to resolve issues. 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.

Child Custody Evaluations

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.

Tiered Mediation

The tiered mediation model consists of three tiers. In Tier I, the parties will work with a mediator in an effort to come to an agreement in their case. That mediation will be confidential and not result in any recommendation or report to the court. For those who are unable to reach agreement, the court could order further services by referral to Tier II or Tier III. In Tier II, a court-connected professional would gather information and submit a report, without recommendations, to the court. Tier III serves as a traditional child custody recommending counseling service, in which a report, with recommendations, would be provided to the court. Cases will initially be referred to Tier I, and the judicial officer will have the discretion to refer cases to subsequent tiers or child custody evaluation as needed.

Confidential Mediation (Tier I)

Tier I referrals provide confidential mediation for families who have been unable to reach an agreement regarding custody, parenting time, and visitation before their mediation appointment. The mediator will not issue a recommendation to the court, but shall report the parties’ agreement to the court.

Nothing prohibits the court from ordering a referral of the parties to expedited or emergency child custody recommending counseling (Tier III) without first attending confidential mediation (Tier I).
Children shall not participate in Tier I unless directed by the court, Family Court Services (FCS), or the child custody professional (Family Code section 3180).
Tier I is confidential except that the mediator may report any suspected child abuse, elder abuse, and/or if someone is a danger to themselves or others pursuant to Penal Code section 11166.

Information Gathering (Tier II)

Tier II referrals are for the purpose of gathering information. A judicial officer has the discretion to include any specific areas of inquiry in a Tier II referral including, but not limited to, contact with law enforcement, contact with Child Protective Services, and interviews with the child(ren) or other collateral contacts. A Tier II summary report shall be submitted to the court and will not include any recommendations from the child custody professional. Tier II sessions are not confidential.

Child Custody Recommending Counseling (Tier III)

Tier III referrals are child custody recommending counseling sessions. If an agreement is reached, the child custody recommending counselor will document the agreement. Otherwise, the professional will prepare a summary report and submit a recommendation to the court. Tier III sessions are not confidential.