When divorces are contested, couples have been known to battle over things great and small—from the family home to the flat screen TV. Not surprisingly, children get caught in the middle of this tug of war, and there are times when it seems impossible to settle questions of custody and visitation. When the separating couple can’t agree on child custody, a court might order mediation.
This article was written to discuss the process of court-ordered mediation, some aspects of family law, as well as what a person might consider as they prepare for mediation. Please note, the type of mediation discussed in this article is different from the private mediation some separating couples agree to seek outside of a court room setting.
If you have already gone through a divorce, but you or your former spouse are seeking to modify an existing custody order, you too might be required to go through mediation. Be sure to have a look at the section on custody modifications (below).
As always, if you have questions about family law, or you are seeking a divorce, contact our office to speak with our attorney.
Court Ordered Mediation and the Family Code
When one or both parents seeking a separation can’t agree to settle their differences on child custody without court intervention, judges are authorized by law to order mediation.
Family Code §3170(a)(1) states:
“If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.”
Section 3170(a)(2) further states, that a party to a divorce can request mediation:
“Prior to filing the petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order, a party to an existing case may request that the court set a custody or visitation issue for mediation, and the court may set that issue for mediation.”
What Is Mediation?
In California, most courts have a family services program where judges refer families who can’t agree on custody and visitation. Once referred to this program, the divorcing couple will meet with a court-appointed mediator. The mediator will generally have a background in psychology, marriage counseling or social work; as well as an understanding of issues such as domestic violence, child abuse, alcohol addiction, and other related issues.
The goal of mediation is to help parents come to an agreement on the custody and visitation of the children. It’s important to keep in mind when preparing for mediation that one of the guiding doctrines of the family code is to do what is in the child’s best interest.
Accordingly, court-appointed mediators seek to help divorcing spouses develop a custody plan that is in the child’s best interest. This means one or both parents may have to compromise their own interests for the children’s benefit. A significant portion of mediation is spent having parents develop a visitation schedule, as well as coming to an agreement on physical and legal custody.
Preparing for Mediation
Whenever a client goes to mediation, one of the key questions we want them to ask themselves is what exactly is in the child’s best interest. By thoroughly exploring this question, and treating it as a mantra, it becomes easier to set mental goals for the mediation process. It’s also important to remember that while we recommend a client keep an open mind, this doesn’t mean they should feel pressured to come to an agreement they’re not comfortable with at mediation. Remember, you’re not obligated by law to come to an agreement during the mediation process.
Dealing With a Difficult Spouse
Sometimes when dealing with a difficult former spouse, perhaps an alcoholic, or narcissist, this person may be completely unreasonable in his or her demands for custody and visitation. When dealing with this type of person in a mediation process, as when dealing with this type of person in any divorce proceeding, it’s best to not to give them too much free space in your head. This means, the more you stay focused on pursuing an agreement that’s best for your children, and the less you focus on the antics of your former spouse, the clearer your path will be.
Consulting Professional Guidelines on Visitation and Custody
There are times when parents with the best intentions remain unsure about what type of visitation or custody arraignment is in their children’s best interest. Naturally, this uncertainty can be compounded by the stress of divorce proceedings. For parents who have questions about how different custody arrangements affect children of different ages, there is no shortage of professional opinions available to review. There is even information on this topic available on the California Superior Court website as well as the Orange County Court website.
If you and your ex have already finalized a divorce but continue to disagree about existing custody and visitation orders, one or both parents might seek to modify the order. If this happens, the judge might require both parents to attempt to come to an agreement through mediation. If you find yourself in this type of situation, it’s important that you prepare for the process by re-examining existing court orders, as well as any exhibits.
Consult an Attorney
A person who goes into court, or a court-ordered mediation without first consulting an attorney, is not fully prepared. Family law is complicated, as are the proceedings where law is practiced. Contested cases are typically complicated to begin with, not just because they tend to be emotional and even rancorous, but also because of what’s at stake, and what each party stands to lose.
This is why, if you’re going through a divorce and facing mediation, it’s a good idea to prepare with the help of a family law attorney.
If you have questions about anything discussed on this page, or some other area of family law, be sure to contact the office of Jason Smith to schedule a consultation.