California Child Custody Law and Procedure - Attorney Warren R. Shiell

Los Angeles Divorce Attorney
Child Custody and Divorce Lawyer in Los Angeles

What if parents cannot agree on a custody and visitation plan?

If parents cannot agree on custody and visitation on their own they may go to court and ask a judge for
a temporary order. The Court will first send them to Conciliation Court where a trained mediator tries to
help the parties agree. In Los Angeles conciliation services are free. An appointment can be made by
calling conciliation services at (213) 974-5524.

If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in
the best interests of the children. The temporary order will continue until the parties can reach an
agreement or until custody and visitation is resolved after a trial.

If parents cannot agree on custody and visitation, they can also ask the court to appoint a mental health
expert such as a psychologist to carry out a custody evaluation. A list of custody evaluators can be
found at the Los Angeles Court's web site at www.lasuperiorcourt.org.

What is custody mediation?

Custody mediation gives parents a chance to resolve disagreements with the help of an expert in
resolving these disagreements. If the parents are able to work out an agreement, the mediator helps
the parents write a custody and visitation order.

The goals of mediation are to:

Help you make a parenting plan that's in the best interest of your children.
Help you make a parenting plan that lets your children spend time with both parents.
Help you learn ways to deal with anger or resentment.

What Is Family Court Services?

Family Court Services is usually part of the Superior Court. Family Court Services has mediators who
mediate disagreements between parents who are separating regarding the care of their children.
You don’t have to pay for the mediators from Family Court Services.

Do we have to go to mediation?

Yes, if you and the other parent cannot agree on a parenting plan for your children, you must go to
mediation. The Family Code (which is the law in this area) requires that if there is a dispute regarding
the children, the parties must try to resolve their dispute in mediation. If the parents can’t agree in
mediation, the judge will make an order at a hearing. Family Code Section 3170) .
But, although you have to go to mediation, you don’t have to reach an agreement.

What happens in mediation?

Mediation can be a way to make decisions about your children without going to court. You and the other
parent can make your own agreement for how you will take care of your children. The legal word for this
agreement is "stipulation." It is also called a "parenting plan" or a "parenting agreement."

Generally:

The mediator meets with the parents together and/or individually. The mediator will ask questions to
develop an understanding of the family history. In cases of domestic violence, you have the right to
meet with the mediator separately. In domestic violence cases, you can also bring a support person.
The mediator and parents will narrow down the issues that need to be resolved. The mediator helps the
parents to focus on developing a parenting plan that is in the best interest of their children.
The mediator will share information on the needs of children of different ages and stages of
development. The mediation may address legal custody, parenting plans, holiday and vacation
schedules, transportation and other areas that relate to the needs of the children.
Parties will consider the options and may resolve all, some or none of these issues.
Remember, this information may not apply or be appropriate in cases of domestic violence or abuse.
Click here for more information on domestic violence issues.

Who are the mediators?

A mediator:

Generally has a master's degree in counseling, social work, or a related field;
Has at least 2 years of experience working in mental health;
Knows how the family court system works; and
May also have information about community services that might be helpful to you.

California has developed standards for conducting mediation. The standards are in the California Rules
of Court 5.210.

What do mediators do?

Although mediators are experienced in counseling, mediation is not counseling. A mediator meets with
both parents and helps them try to agree on a plan that is best for their child. The mediator's job is to:

Listen to both of you.
Be neutral.
Help you look at different options.
Help you decide when the child will be with each parent.
Help you decide how future decisions about your child will be made.
Help you consider how best to protect your child's safety and welfare.

Guidelines for mediation:

Treat each other with respect. You will both get a chance to explain your ideas.
Listen to each other and try to find real solutions.
Put the children first. Think about what they need and can handle.

Does the mediator make a recommendation to the judge?

It depends on your county. In some counties, mediators make recommendations to the judge. In some
counties, if you and the other parent can't agree on a parenting plan through mediation, the mediator is
asked to give the court a written recommendation. It will contain the mediator's opinion about what
parenting arrangement will be in your child's best interest. You will also get a copy of the
recommendation.

Does the mediator meet with both parents together?

Usually, yes. Mediators interview both parties together. But, if there has been domestic violence or
there is a restraining order between the parents, the parent victim of the violence can ask to meet with
the mediator separately. Sometimes, the mediator may decide it is more appropriate and helpful to
meet separately and s/he can do that.

Does the mediator meet with the children?

It depends. Mediators will interview children if it will help the parents to develop a parenting plan that is
best for the children. Mediators are trained professionals and know how to interview children without
making them choose between their parents or putting them in the middle.

Is what I say in mediation confidential?

In some counties what you say is confidential, and it will stay between you and the mediator and the
other parent. The other parent can't use it in court.
In other counties, mediators make "recommendations" to the judge when the parents don't reach an
agreement in mediation. The mediator may include what you say in mediation in the report sent to the
judge, to the other parent and his or her attorney - but it's confidential as far as anyone else goes.
If a mediator suspects child abuse, he or she may need to report this to child protective services.

What happens if we reach an agreement in mediation?

If you reach an agreement on your parenting plan, the mediator will usually prepare a written agreement
for both parents to sign. If neither parent has a lawyer, the mediator or the parents will give the
agreement to the judge to approve and sign. When the judge signs it, it becomes an official court
order.
If either parent has a lawyer, you should talk to your lawyer about what you should do if you reach an
agreement in mediation. Your lawyer may review it before you and s/he sign it and will then take care of
getting the judge to sign it and file it with the court.

Do we have to agree to a parenting plan in mediation?

No. You do not have to come to an agreement in mediation. When the parties can't agree, the judge will
decide.

In some courts, the judge will consider the mediator's recommendations about the parenting plan. Ask
family court services about how the process works in your court.

What happens if we can't reach an agreement in mediation?

There are other Alternative Dispute Resolution (ADR) options you may try, including:

Meet and Confer: Parties and their lawyers (if any) may meet at any time and as often as
necessary to work out a parenting plan without a court hearing. If there is a protective order
limiting the contact between the parties, then the "meet and confer" can be through lawyers or a
mediator in separate sessions.
Settlement Conference: In some courts, parties may meet with a judge, neutral evaluators, or
family law lawyers not involved in your case to discuss settlement. Check with your local court to
find out if this is an option. If there is a protective order, the settlement discussion can be through
lawyers or a mediator in separate sessions.
Private Mediation: Parties may hire a private mediator to help them resolve their dispute.
Collaborative Law Process: Each party hires a lawyer and agrees to resolve the dispute
without going to court. The parties may also hire other experts.

What happens in mediation if one or both of us have lawyers?

Mediation can still happen, and in some cases, the lawyer will participate with you and the mediator.
You and your lawyer can talk with the mediator about this. But you and your lawyer need to decide if
your lawyer will go to the mediation, and then be sure to tell the mediator and other party whether the
attorney will be coming. Some counties may not allow the lawyer in the mediation, so ask your mediator
about the rules in your court.
It could be very helpful to you to get legal advice before or after the mediation. It will help you
understand your legal rights and responsibilities and to develop options for reaching an agreement. So
even if you are representing yourself in the court case, consider talking with a lawyer about the issues
and possible the agreements you are reaching in mediation.

What if I’m worried about domestic violence?

If you have to go to mediation with a person who controls or attempts to control you through force,
intimidation or the threat of violence, you have the right to ask to meet with the mediator separately from
the other parent. The mediators are trained in the dynamics of domestic violence to protect your safety
and any household member.

If you've experienced domestic violence:

Tell your lawyer, if you have one.
Tell your mediator as soon as possible.
Answer all of the judge or mediator's questions about this issue.
You can see the mediator without the other parent.

If a mediator suspects child abuse, he or she may need to report it. (It is a crime for a parent to file a
false report of child abuse against the other parent.) Ask your mediator for a list of places that can help
you and your children.

What is an evaluation?

In some cases, the judge decides that it is in the best interest of the child to have a child custody
evaluation. A custody evaluation is an investigation into the facts of the case. Usually, the investigation
includes interviews with the parents, children, and other people who may have information about the
situation, like teachers, doctors, other relatives, or counselors. It can also include other important
reports that relate to the family, like court records, police reports, and reports from providers of anger
management or parenting classes. The evaluator may also visit the home or the school site.
A custody evaluation generally takes up to 60 days. And, usually, the parents must pay a fee for this
service.

Who does the evaluation?
It depends. Sometimes it could be someone from Family Court Services at your court (but not your
mediator). Other times, the judge may appoint a private professional to do it.

Additional articles on Child Custody:

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell to discuss your
custody issues.
Call for a free consultation now 310.247.9913.

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