Mediation is a useful alternative dispute resolution device utilized in many areas of law. For this reason, California lawmakers enacted Family Code 3170 (a), requiring that parents participate in child custody mediation, or child custody recommending counseling (CCRC), anytime there appears to be an issue involving setting or modifying a parenting plan.
Everything You Need to Know About Custody Mediation in California
If parents are able to work out an agreement during their mediation session, the mediator can help the parents write up a parenting plan that may then become a custody and visitation order if it is signed by a judge.
In some counties, mediation is simply a forum in which a neutral third party helps the parents to work out a custody agreement prior to their hearing. However, there are some counties where the mediator makes a recommendation to the judge if the parents don’t reach a full agreement during their mediation session. These counties are referred to as “recommending counties.” That recommendation can impact the entire litigation. So what do you need to know before going into your mediation session?
Am I Required to Mediate or Can I Just See the Judge?
Generally, the best way to co-parent a child is for parents to work together to make a custody agreement they can both live with. This helps prevent a long, expensive court battle and makes the parenting plan easier to follow. Parents can negotiate the agreement on their own or through their family law attorneys, but mediation offers a less adversarial approach, where an unbiased third party can help the parents communicate and compromise.
California law makers have codified this thought process in Family Code 3160, which requires every California family court to have a mediator available for child custody disputes.
My ex is too unreasonable…
We’re NEVER going to agree…
We’ve been to mediation before…
No matter how much of a waste of time you think child custody mediation will be, you still have to go through the process because Family Code, section 3175 states that mediation is required to take place prior to a child custody hearing.
What is the Difference Between Child Custody Mediation and Child Custody Recommending Counseling (CCRC) or Family Court Services (FCS)?
The short answer is that there isn’t really a difference. Each county seems to choose whichever term it prefers for custody mediation.
Whether it is called Child Custody Recommending Counseling (CCRC) or Family Court Services (FCS), California Rule of Court 5.210 contains an additional set of rules for child custody mediation in California. The basic requirements of 5.210 are as follows:
- Mediators must maintain an “overriding concern” for the best interests of the child
- Mediators are required to be impartial and competent
- Mediators are required to control the mediation session to “balance” the powers
- Mediators may interview children (Family Code 3180)
- The intake process must include screening for domestic abuse
- The court must provide notice that the mediation is not confidential when a recommendation is made
How to Prepare for Child Custody Mediation [CCRCA or FCS]
Mediation is one of the most important parts of the custody process. Even when a parent is represented by a child custody attorney, mediation is attended only by the parents and the mediator.
Being prepared for your mediation session can be the difference between making a good impression and receiving a favorable recommendation, and the alternative.
Here are a few tips to help you prepare for your child custody mediation session:
- Dress for success. Paying attention to your appearance and personal hygiene will ensure you make a good first impression on the mediator. You are there to discuss your child, so appearing as though it is important to you will set the tone for the session.
- Arrive well rested and ready to listen. Make sure you get a good night’s sleep before mediation so that you are alert and responsive to the mediator’s questions.
- Make sure your paperwork is complete and properly served on the other party. The mediator may review the declarations and pleadings filed in your case prior to your appointment, so including all pertinent information is important so that you don’t have to waste time catching the mediator up during the session.
- Ask for separate mediation if domestic violence is involved in your relationship. You do not have to sit in the same room with your abuser. Conversely, if you have been falsely accused of abuse, contact a domestic violence attorney to ensure it does not impact your custody case.
- Bring a parenting plan and parenting time schedule that clearly details the custody arrangements you want and logical reasons why it should be implemented. Consider making multiple plans and schedules so that you can present options.
- Be on time for your appointment. The mediator’s schedule is usually jam-packed and often, if you are more than a few minutes late, you will not be seen and will have to wait for your hearing date to request a new mediation date. You can also be sanctioned for failing to appear at mediation.
Child Custody Mediation Do’s and Dont’s
During custody mediation sessions, the way a parent says something can sometimes be just as important as what a parent says. Here are a few tips to help you put your best foot forward during your mediation appointment:
- DO make all your remarks to the mediator child focused instead of “me” focused. Remember, this isn’t about you or your “rights” as a parent. It’s about your child, your relationship with them, and your ability to co-parent for them. No offense, but no one here cares about you or your “rights.” They care about your child.
- DO be polite to the mediator and the other parent while remaining calm- no matter what. Don’t be obnoxious, argumentative, or interrupt the other parent. You will get your turn to voice your concerns. Interrupting the other parent or becoming angry and combative when the other parent is talking will backfire, with the mediator believing YOU are the problem.
- DON’T lean forward, loom, stare, or point at the mediator or the other parent. Being aggressive and intimidating will get you nothing except a bad recommendation from the mediator.
- DON’T talk about timeshares and percentages. If you start talking about wanting “50/50 custody” or anything along those lines, you might as well just flat out tell the mediator you only really care about a reduction/increase in child support, since part of the child support calculation is how much time each parent spends with the child.
- DON’T act like your child is a possession. Talking about “my” child tells the mediator you see your child as a mere possession, or you are possessive of the child and probably won’t foster the relationship between the child and the other parent. If you are being accused of alienating the affection of the child, talking about “my” child during mediation is the perfect way to confirm that is the case.
- Remember, this is not a roast of the other parent. Don’t point fingers (literally or figuratively) at the other parent or engage in the “blame game.” Listing off all of the things you don’t like about the other parent or all of the reasons you think the other parent is a bad parent is not appropriate. In fact, if you choose to do so and the other parent remains calm and reasonable, all you have accomplished is proving the other parent is capable of immense patience. If you have concerns about the parenting of your co-parent, address it in a mature way, using “I” statements. For example, if parental addiction is your concern, instead of saying: “Mom is an alcoholic and is always drunk in front of the kids” try saying: “Mom is a good mother, but I am concerned that her need for alcohol sometimes overshadows the needs of our children.”
Keep in mind, the mediator doesn’t know you, the other parent, or your child(ren). It’s your job to go in there and show them that you are a reasonable parent with your child’s best interests in mind.
How to Deal with a Child Custody Mediation Recommendation That You Don’t Like
If your child custody mediator writes a recommendation that you don’t agree with, then you can challenge the mediator’s recommendation and request that the court enter an order contrary to the recommendation. Oftentimes, a parent dislikes only portions of the recommendation, rather than the entire parenting plan. In that case, only a portion of the recommendation needs to be challenged, rather than the entire thing.
There is no particular method to challenge a child custody recommendation from a court-appointed counselor. The methodology to challenge the recommendation depends on the judge, the number of problems with the report, and the rationale behind the recommendation.
Contacting the other parent and working on a negotiated settlement may be the best course of action if you aren’t comfortable risking the judge adopting the recommendations of the mediator.
Ultimately, if there is something in the mediation recommendation that you strongly disagree with, ask the court for a continuance and contact a custody attorney for advice on how to proceed.