Child Custody & Visitation: Preparing for Custody Mediation

Child Custody And Visitation: Preparing For And Reacting To The Custody Mediation

Most parents in the midst of a custody dispute are not aware of all the procedural steps involved on the path to obtaining child custody and parenting time orders. As a result, they are likely mis-prepared or under-prepared depending on the facts and circumstances of their case.

With the exception of the court hearing, the most important part of the child custody and visitation process in the County of San Diego is the child custody mediation and recommendation process. This process is formally known as “child custody recommending counseling,” and colloquially known as “FCS mediation” (because it takes place in the Family Court Services department of the courthouse).

We assist our clients with FCS mediation in a variety of ways depending on which stage of the process they engage with our office.

Planning Ahead for Child Custody Mediation

I often tell clients that their preparation for FCS mediation begins, or should have begun, months before the appointment is scheduled. Although the primary goal of the mediation is to attempt to resolve custody issues amicably in lieu of attending a court hearing, most parents that have reached this stage of a case are not able to reach agreements. In the case of no agreement, the mediator will submit a recommendation to the court regarding what custody and visitation orders they believe are in the best interest of the child, or children. This is the critical step because even though the FCS recommendations are not binding on the court, they are given significant weight, and it can be very challenging for a parent to convince the court to make sweeping changes to the recommendations.

If possible, prepare your case with the assistance of an attorney before you file a Request for Order for custody and visitation orders, or in anticipation that the other parent may file one, because the mediator will consider the existing custodial arrangement and recent history, to include each parents’ conduct, communications, child preferences, drug/alcohol use, and other factors. Parents have one shot to make a great impression on the mediator and knowing in advance what information is important to them allows a parent to better influence the mediator’s recommendation by taking action early.

Responding to Circumstance

Parents often do not have the luxury of excess time to prepare for custody mediation. This may be a matter of various circumstances in their lives, the children’s lives, or the conduct of the other parent. Many clients come into our office because the other parent has surprised them with court papers, which include a Family Court Services appointment already scheduled. In this scenario, immediate consultation with an attorney is necessary to “triage” the situation. It is important to identify the strengths and weaknesses of your case at that point in time and understand what actions may be necessary, and possible, to change the tone or themes presented by the other parent.

Post-Mediation: What if you receive a bad recommendation?

In a worst-case scenario, clients have already attended the custody mediation and have received what they believe is a bad recommendation. It is important to note that a “bad” recommendation may be a great recommendation for another parent under different circumstances. A parent must be aware of their realistic outcomes in court or else they may incur excess time and expense for unattainable results.

Further Reading » Child Custody in California: Understanding ATROS and Relocation

However, the poor mediation result may not be related to their circumstances at all. Instead, it may be a result of being underprepared for mediation and not understanding what information to present, or how to present that information effectively. The mediator may not have been able to properly assess the parenting and co-parenting dynamic appropriately, or fairly.

In the scenario in which a parent received a bad recommendation, they have a few ways in which they might be able to persuade the court to substantially modify the recommendation:

Providing a detailed declaration

One approach is to provide the court with a detailed declaration regarding the facts and circumstances of your case, supported with evidence, and arguing that the recommendation is not in the children’s best interest considering those facts and circumstances. Seeking an attorney’s guidance on what information is relevant to the court’s decision is highly encouraged when preparing the declaration. Additionally, an attorney will provide legal advice as to statutory deadlines and local rules related to the filing of declarations.

Cross-examine the Mediator

A second approach is requesting the opportunity to cross-examine the mediator. Each party has a right to examine the mediator at the hearing involving matters covered by the mediator’s recommendations. This process allows the parties to deep dive into the mediator’s decision-making, third-party contacts, information they considered, and understanding of all the facts—especially if they did not have all facts at mediation.

The mediator may place more weight on one parent’s allegations than the other’s, or may not weigh any facts that are not corroborated. Informing the court that you would like to examine the people the mediator contacted and/or people the mediator did not contact may be a strategy to introduce corroborating information that could have changed the mediator’s opinion and, ultimately, their recommendations.

Requesting an evidentiary hearing

Requesting what is called an “evidentiary hearing” to present live testimony can extend the length of your case significantly, as well as drastically increase the attorney’s fees the parties incur, let alone not be helpful to a case depending on the circumstances. Again, seeking an attorney’s guidance on what witnesses would be helpful, if at all, and overall strategy is critical.

Preparing for child custody and visitation mediation is crucial to achieving a favorable outcome for you and your child. Whether you are planning ahead, responding to unexpected circumstances, or dealing with a bad recommendation, there are options available to you. Seeking the guidance of an experienced family law attorney can make all the difference in achieving a successful outcome. Remember, the best interests of your child should always be at the forefront of any custody dispute. If you need assistance with your child custody or visitation case, contact our family law team at Naimish & Lewis to schedule a consultation today. Don’t wait until it’s too late.

Robert J. Allison, Esq.

Mr. Allison is a resolution-oriented associate attorney in our Family Law Practice. Even-keeled and fact focused, he is able to assist our clients understand their rights and obligations through the stress and smoke and mirrors presented in their divorce, custody, and domestic violence matters. During the initial consultation, and again once facts and evidence have been collected, Mr. Allison provides various strategies to help clients present their cases, considering cost, time, and client needs. He prides himself in not making false promises to his clients and is unafraid to speak the raw and sometimes harsh reality of how a Court will decide a matter given a specific set of facts and circumstances, both to his clients and to opposing parties. Many potential clients share that they are unhappy with their previous attorneys because they felt a lack of communication, an uncertainty about the family law process and timeline, and they do not understand the strategy in their case or the invoices they receive. While the legal process is complex, Mr. Allison attempts to reduce the confusion through a reasonable case management process involving client participation, because a family law case is often the most difficult period of time in a client’s life.