As any parent can imagine, decisions and disputes related to your children’s well-being and future are the toughest, most heart-wrenching issues divorcing spouses face. Child custody is among the most sensitive and consequential areas in all of family law.
Many clients are surprised to learn that, even within California, the legal process for custody orders varies by county, and it’s still evolving.
Statewide, when issuing custody orders, courts must apply one overarching principle: the best interests of the child. This standard plays a crucial role in family law, but it has no fixed, precise definition. Instead, it requires a well-rounded evaluation of many factors related to the child’s safety, physical/mental/emotional health, stability, security, and happiness.
These considerations are somewhat subjective, and applying the best interests standard can be challenging in practice, especially because a judge often has limited exposure to a family’s case and real-life circumstances.
Except in extremely high-conflict cases, situations where there’s a total communication breakdown, or a history of abuse or domestic violence, divorcing families tend to benefit from the parents working together (with their attorneys) to create a highly customized, practical parenting plan that works for their family’s life. The plan can then be submitted to the court for approval; once the judge signs it, it becomes a court order.
When parents can set aside their differences and focus on what’s truly best for the child, and what will genuinely work for the family in its new form, creating a parenting plan together gives them much more control over details and outcomes than turning decisions over to a judge. Willingness to cooperate can also streamline the process, getting it done faster and at less expense; it can meaningfully reduce stress and conflict, making an agonizing process easier on everyone, including the child.
When parents cannot agree, California law requires them to attend mediation before a judge will hear a request for orders. The court will refer the spouses to Family Court Services (FCS) for mediation (though in some cases a couple may choose private mediation).
This is where the process diverges slightly, depending on where you file your dissolution.
There are two kinds of custody mediation: non-recommending and recommending (formerly known as Child Custody Recommending Counseling or CCRC). The type you will participate in varies by county.
In non-recommending counties, mediation is confidential. If the parents agree on all custody issues during the session, the parenting plan is submitted to the court for approval. If the parents still dispute the issues after mediation, the case proceeds to court without any information from the session going to the judge. The mediator simply reports that no agreement was reached.
In recommending (CCRC) counties, the mediator is a child custody recommending counselor. If mediation fails to produce an agreement, the mediator is legally authorized to submit a written custody and visitation recommendation to the judge based on the session.
Los Angeles, like San Francisco, has historically been a non-recommending county. However, with a pilot program launched August 25th, 2026, the Los Angeles County Superior Court is testing a new hybrid model (while new to LA, hybrid or mixed-method approaches are already practiced in some other California jurisdictions).
For dissolutions filed at LA’s Stanley Mosk Courthouse (central district), parents with contested custody issues will now have two chances to reach an agreement through mediation.
In qualifying cases, if parents do not reach an agreement at the initial confidential mediation, they will go to a second mediation session with a different FCS counselor. Both the first and second mediators will have access to filed documents, but the second counselor will not have access to information about what transpired in the first mediation session – it remains confidential. If no agreement is reached after the second session, the counselor can submit a written report to the judge recommending a parenting plan.
The mediator’s recommendation is not binding; the judge still has full authority to decide what’s in the child’s best interests.
There are certain restrictions on who can participate in the program:
- Only applies to an initial request for orders – parents cannot have prior custody and visitation orders
- Excludes cases with pending domestic violence petitions
- A second (recommending) mediation session does not proceed if the initial confidential mediation is suspended/terminated due to allegations of abuse or neglect
This pilot program has several goals:
- Give families another chance to resolve custody disputes through agreement;
- Further encourage parents to reach agreement outside of court;
- Preserve the confidentiality of the initial session; and
- Provide judges with more useful information and context when a case goes to court;
- Reduce the negative effects of drawn-out custody battles on children;
- Reduce congestion and improve efficiency of the court
This pilot represents a very significant change, and it has prompted some pushback, including:
- Many family law attorneys were surprised by the change as the program went into effect the same day it was announced, August 25th.
- Concerns have been raised about whether the recommendation of the second counselor, who will likely never have met the child/ren, may carry disproportionate weight with the judge.
- And because many couples entering custody proceedings are self-represented, there are questions about whether litigants will fully grasp this new system and their rights (such as the complex rules around raising evidentiary objections to the counselor’s recommendation)
The court argues that this is a test program and that a statistically meaningful sample will be necessary to evaluate data (settlements reached, timeframe, number of cases that proceed to litigation, modifications, etc.) and determine efficacy. But court officials have referenced a similar tiered mediation pilot in Fresno that has produced strong results.
The hope is that the program will improve access to justice, especially for divorcing parents without attorneys, who would typically get one brief mediation session and then, if no agreement is reached, just a few minutes before a judge. The hybrid system gives them an additional two hours with a trained custody counselor.
At SFLG, we’ve helped families navigate complex, contentious custody disputes for over 40 years.
By Debra Schoenberg
