Whenever custody or visitation of a minor child is contested the court will order the parties to mediation before the matter is heard before the court. Clients often have questions regarding the process of mediation. Why do they have to go? When do they have to go? Where do they go and who do they use? How does it work? The questions can seem endless.

Why: The courts impose the requirement that parties attend mediation prior to a hearing primarily for purposes of attempting to get the parties to settle, keeping in mind the best interests of the child.

How: The mediation process can vary from case-to-case depending on the surrounding circumstances. The selected mediator may choose to interview the child, or not, if s/he feels it is necessary and/or appropriate under the circumstances. The mediator will meet with the parents, usually together, to discuss custody/visitation and consider the child’s best interests. The mediator will consider the health, safety and general welfare of the child so as to make a complete recommendation. However, where there has been domestic violence between the parties and/or a protective order is in place, the mediator must meet with the parents separately. Whether or not the parties’ attorneys are present is at the discretion of the mediator. It should be noted that it is very rare for an attorney to be present for mediation. However, it is not uncommon for parents to consult with their attorney prior to attending mediation. After attending mediation, the mediator may make a recommendation to the court regarding custody and/or visitation. Pursuant to Family Code Section 3183(a) the mediator must provide, in writing, a copy of the report to both parties, their attorney’s, and minor’s counsel (if applicable). However, this is not the case in every county as not all counties are “recommending” counties (for example, Alameda County is a recommending county whereas Santa Clara County is not). This is because in some counties, such as Santa Clara, mediation is confidential, and therefore, recommendations are not made. Should the parties reach an agreement at mediation, that agreement will be reported to the parties’ attorney’s by the mediator.

When: As mentioned above, parents will be required to attend mediation prior to any motion being heard on the issue of custody and/or visitation. In Santa Clara County, prior to going to mediation, the parties will be sent to Family Court Services (FCS). FCS offers an “Orientation to Mediation” class which provides the parties with information regarding the Mediation process. They will receive a handbook which contains information on child custody/visitation; child development; co-parenting; tips to avoid conflict should a disagreement arise during mediation and much more. In Santa Clara County, the classes are free and can be conducted online or in person. It is important to show up/enroll for the Orientation classes as a failure to do so can result in a fine against the parent who fails to comply with the rules.

Where and Who: When the court orders parties to mediation, Family Code Section 3160 requires that the court make a mediator available. Mediators are required to fulfil certain requirements regarding education and counseling.

What if Mediation is Unsuccessful: If the parties are unable to reach an agreement on custody/visitation, then they will report such to the court and will likely be ordered to attend a Judicial Custody Conference.

The process of obtaining a custody and/or visitation order can seem endless to parents. Here at Mello & Pickering, LLP we can help develop a strong case for you. With 40 years of combined experience, we can help you to ensure that you and the child’s best interests are protected.

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