In addition to the immense stress and heartache of ending a marriage, going through divorce as a parent can mean suffering excruciating worry about how the split will affect your children, your relationship with them, and your role in their life and upbringing.
How will we create a stable and familiar-feeling routine? How will we juggle all that has to be done across two homes – pickups and dropoffs, homework and piano practice, dentist appointments and dance classes? How will the kids handle the changes? Will they struggle in school, act out, have mental health issues? Will they be angry at us? Blame themselves? Will they understand that I love them as much as ever, even though we spend less time together? Will I miss out on milestone events and small but meaningful moments? How will we manage holidays, birthdays, school plays, soccer games, graduations?
Maybe the only thing you and your ex agree on right now is wanting the very best for your children… and you can’t even agree on what’s best.
Contentious, emotionally charged custody disputes can arise over an enormous range of issues. Maybe you each want primary custody, or you’re in a standoff over how time should be split, or one of you wants to relocate. Maybe there are religious differences. Perhaps your child has special needs, and you don’t see eye to eye on the best type of education or medical care. Sometimes you just have really different parenting styles.
Does this mean you’re facing a grueling court battle? Well, it depends. Sometimes trial is necessary – but in many cases, mediation is a route to resolving at least some of your most challenging custody issues.
Key Things to Know About Child Custody in California
First, let’s review some key things to know about child custody law in California:
- California divides custody into two distinct categories: legal and physical. Legal custody refers to decision-making authority; physical custody determines where the child lives and how parenting time is divided. Both types can be awarded as joint (shared by both parents) or sole (to one parent).
- By law, the court must make all custody decisions based on the established standard: the child’s best interests. The judge will evaluate many factors relevant to the child’s health, safety, stability, and overall well-being.
- The court strongly encourages parents to draft their own parenting plan (ideally with their attorneys). Creating your own parenting plan, subject to court approval, gives you a lot more control over the details – you can customize it to work for your family’s real life.
- Under Family Code § 3170, parents who are unable to reach an agreement on their own must participate in mediation before a judge will hear their case and make custody decisions.
The good news is, mediation is often faster, calmer, and less expensive than litigation. It can be a very effective way to resolve disputes and find a custody solution that fits your life and your family’s real needs.
What Is Mediation?
Mediation is a process in which a neutral third party facilitates discussion between disagreeing parties, helps them understand each other’s point of view, and guides them toward solutions they can both live with. Unlike a judge, a mediator doesn’t issue a binding decision. But, in some contexts – including custody mediation – if the parties reach an agreement, it can be submitted to the court for approval and, provided it meets legal standards, become an enforceable order.
How Does Mandatory Mediation Work in Custody Cases?
When you are required to participate in mediation, you still have choices. You can opt to hire a private mediator or go through Family Court Services (FCS).
Private Mediation
If you choose private mediation, you will usually pay by the hour for the services of a professional mediator (often a retired judge, family law attorney, or other relevant expert). You can take your time discussing issues and solving problems, at a cost. If you agree on a plan, you both sign it and then submit it to the judge for signature so it becomes your official order. Private mediation is completely confidential – if no agreement is reached, nothing said at the table is reported back to the court.
Family Court Services Mediation
Many parents opt for court-connected mediation through Family Court Services. The mediators are typically mental health professionals hired by the court. This type of mediation is usually a single session, lasting 1–2 hours, and the cost is usually included in your filing fee. It’s less expensive but can feel rushed, so thorough preparation is essential.
The Family Court Services Mediation Process
Statewide, FCS mediation follows a fairly standard procedure:
- First, you’ll have an orientation. In most places, it’s offered online and takes an hour or so to complete. It will explain the basics of how mediation works and emphasize children’s developmental needs.
- You will then have the mediation session.
- Sitting down. Usually, the mediator meets with both spouses together, but in high-conflict situations or where there are serious safety concerns (e.g., a history of abuse or domestic violence), the mediator may meet with each separately and “shuttle” between you with proposals. They may stagger your arrival times or provide video conferencing.
- What you will cover. The mediator will focus on details, not just general principles. They’ll work on the specifics of scheduling, transportation, holidays, school and extracurriculars, a child’s special needs, how parents will share decision-making, and plans for communicating effectively and resolving future disputes. The mediator will identify areas of agreement, coach you through productive discussions when you disagree, and suggest potential solutions.
- What to bring. Mediation is most effective when parents come prepared with practical ideas and clear, well-thought-out proposals that account for the unique logistics of their lives and family dynamics. Bring supporting documentation such as school and work calendars and notes on routines. If you need to raise concerns (e.g., a co-parent has a pattern of missing pick-ups), state them neutrally; avoid accusations, generalizations, or personal attacks. Most importantly, bring a willingness to set aside your differences, work together rationally, and stay focused on your child’s needs.
- There are three potential outcomes:
- Full agreement. If you agree on all issues, the mediator (or your attorneys) will draft a Stipulation and Order and submit it for the court’s approval.
- Partial agreement. If you reach agreement on some issues, the mediator can document what you agreed on and provide that to the court, leaving the rest for the judge to decide.
- No agreement. The case typically proceeds to a court hearing, with or without a recommendation, depending on the county.
Recommending vs. Non-Recommending Mediation
Depending on what county you file in, your FCS mediation may be recommending or non-recommending. The difference between the two is in what happens if you and your spouse do not reach an agreement during mediation.
Recommending Counties
In recommending counties, the mediator makes a recommendation to the court, suggesting a custody arrangement they believe is in the child’s best interests, based on your session. Although the judge is not required to follow it, in practice, these recommendations often carry significant influence with the court. That means the stakes are high – it matters a great deal how you present yourself, your positions, concerns, and the details of your proposed arrangement during mediation.
Non-Recommending Counties
In non-recommending counties, couples who reach an impasse proceed to court without input from the mediator – the mediator will simply inform the judge that no agreement was reached.
It’s important to come well prepared in any case, but it’s helpful to know ahead of time which type you will participate in based on your location.
Preparing for Child Custody Mediation in California
For nearly 40 years, the experienced and caring attorneys at SFLG have been helping parents navigate the custody process through strategic negotiation, mediation, and litigation. We know how high the stakes are when your children are involved. We understand the nuances of California family courts and how to prepare clients for successful mediation. Our team is skilled at devising creative, highly customized solutions to thorny parenting-plan problems. We put your child’s needs first and protect their well-being, whether you reach an agreement or go to trial.
By Debra Schoenberg
