How Do I Prepare for Child Custody Mediation?

How can I prepare for custody mediation?

How do I prepare for custody mediation? What should I review, what should I say and what really happens? These are all questions parents with a California child custody case ask before they walk into a custody mediation.

What is a child custody mediation?

The child custody mediation to which we refer is the mandatory mediation at court. The court sets this mediation date when a parent files a request for child custody order. This is not a private mediation with a privately paid mediator, where the parents get to choose a retired judge or lawyer to be the mediator. This is the mediation to which Family Code 3170 refers and which states:

"(a) If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.

(b) Domestic violence cases shall be handled by Family Court Services in accordance with a separate written protocol approved by the Judicial Council. The Judicial Council shall adopt guidelines for services, other than services provided under this chapter, that courts or counties may offer to parents who have been unable to resolve their disputes. These services may include, but are not limited to, parent education programs, booklets, video recordings, or referrals to additional community resources."

How do I prepare for custody mediation when the other parent is so unreasonable?

This is probably the most common question we get. We hear the following:

• "The other parent is a nightmare to deal with…"
• "I just cannot imagine being able to come to an agreement with someone like that."
• "How can I possibly prepare for custody mediation with a parent like that?"

Do not pressure yourself to agree

First, you are under no obligation to come to an agreement at a custody mediation. You should only come to an agreement you believe is in the children's best interest. Nobody can pressure you into agreeing to a custody plan that you believe will not work or will otherwise harm the children. Do not put that kind of pressure on yourself.

Be reasonable

Second, your obligation is to engage in good faith negotiations and to actively participate in the mediation. That means you:

• Walk in with an open mind,
• Remain willing to listen, and
• You will be reasonable throughout the entire mediation process.

But being reasonable does not mean you have to agree to something you do not want for the children.

Focus on what you believe is in the children's best interest

Let's now answer the core question.

The other parent is unreasonable. He or she is difficult, extremely stubborn and narcissistic. Maybe the other parent just wants to use the children as leverage and really doesn't care about parenting time. Perhaps the other parent just cares more about child support. Or the other parent just wants to make this as difficult as possible on you.

No matter what the reason, the most effective way to prepare for a custody mediation when you have a parent like that is to make the other parent irrelevant in your decision making process. What do we mean by that?

Have you ever seen and heard a barking dog that barks for no reason? What do you do? Go up to the dog and try to negotiate with it? No, you leave it alone. Don't let the other parent's barking, attempts at intimidation or other tactics stress you out. Don't let emotions make your decisions for you.

You don't have to worry about what the other parent thinks or feels to prepare for custody mediation. You just have to be clear about what you believe to be in the children's best interest and why. The "why" part is important because you also do not want to be unreasonable. It is not enough to say, "I want this custody plan because I want it," without being able to articulate a logical, child-centered reason for it.

How do I prepare for custody mediation when I do not know what parenting plan makes sense for the children?

You want to prepare for custody mediation but you feel overwhelmed. You don't know what parenting plan schedule actually makes sense for the kids. What do you do? Do not worry.

There are parenting plans out there you can read. For example, here in Orange County, we have the Orange County Parenting Guidelines that set forth specific parenting schedules based on the children's ages and needs. These parenting plans are specific and it is rare that a parent cannot find a plan in the guidelines that work well for their situation.

No matter where your case is in California, the Orange County parenting guidelines are usually a good educational start. If your county has its own parenting guidelines, I encourage you read those as well.

What documents should you read to prepare for custody mediation?

Chances are pretty good that you or the other parent filed a request for order and that set the mediation. Hopefully, if the other parent filed the request for order, you timely filed and served your responsive declaration to the request for order.

These two sets of documents are the starting point to prepare for a custody mediation. The request for order that initiated the process and the responsive declaration should tell the factual story of what the moving and opposing parties want. But it is not an ending point.

Review court orders for modification cases

If there are active court orders on custody, you should definitely re-review those to make yourself familiar with it. For example, if the custody mediation is actually about a modification request either you or the other parent seeks, be very familiar with the current order you or the other parent seeks to modify. In addition, if there are exhibits, review and become familiar with those.

The more complex the case, the more prepared you should be

What you review depends on what is at issue in front of the court. If it is a simple modification and there are no separate exhibits, then there is probably not much to review beyond the documents filed and served. What if the custody hearing is over complex issues that involve domestic violence, neglect, substance abuse, or any other complex issue? In such a situation, you may have a lot more documents to review to prepare for mediation.

Prepare to be confident and organized

You may wonder why it is necessary to review documents. You review documents to prepare for an intelligent dialogue with the mediator about the case. Sitting there in mediation fumbling through paperwork and not knowing your own position is not going to make a favorable impression on the mediator. It may end up wasting an opportunity for you and the other parent to resolve issues.

In addition, the other parent may rethink his or her position due to your preparation. Think about it this way. The other parent sees you confident, organized and ready to discuss all of the issues. The other parent realizes facts support your position. Don't you think that may cause him or her to perhaps think twice about his or her own position?

How do I prepare to speak with the custody mediator?

The custody mediator should have two objectives:

1. To understand each parent's position on custody issues and the facts that support that position.

2. To help the parents reach a reasonable compromise.

Here is a list of the do and do not's with the custody mediator

• Have a candid discussion with the mediator regarding the facts.
  • Do not argue with the mediator. You can present your position factually and logically without raising your voice or getting into an emotional argument.
• Be clear with the mediator if what the other parent stated is false and provide the facts that support your contention.
  • Do not disparage the other parent or make personal attacks against him or her.
• Listen to the mediator and his or her perspective on the custody issues so you can determine whether the mediator gives you a perspective you perhaps did not think about before.
  • Do not be intimidated or pressured into coming to an agreement just because the custody mediator really thinks you should.
• Listen carefully to what the other parent states and take notes so you are clear on his or her position.
  • Do not interrupt the other parent while he or she speaks. Be polite in your dialogue when you speak. If the mediator sees you as being polite and professional while still a concerned and loving parent, you are more likely to make a positive impression on the mediator.

How do I prepare for custody mediation if my county is a reporting county?

A reporting county is a county where the mediator actually makes recommendations to the family law judge after the mediation. In Riverside County, they are called Child Custody Recommending Counselor. I am personally not a fan of this process at all but certain counties in California are reporting counties and the judges actually get to read the mediator's recommendations. Preparation in counties like this is even more important than non-reporting counties. What we wrote above about knowing the case and the facts are critical in reporting counties because of the mediator's reporting power.

Do not confuse "reporting" mediators with the powers to make decisions. Just because the mediator made a recommendation does not mean the judge will agree with it.

How do I prepare for custody mediation when I have a lawyer?

Your attorney should be the one who prepares you for mediation. If there is a mediation on your case and your attorney has not set a time to speak with you before the mediation, that is in our opinion unusual. You should contact your attorney and set that appointment to speak with him or her about the mediation process. At our firm, we set these appointments and we prepare our clients thoroughly before they walk into the custody mediation.

Contact us if you need help with your child custody case

Please contact us for an affordable strategy session to discuss your specific situation. Our family law firm is highly experienced in handling pending and post-judgment divorce and parentage matters.

Nothing contained on this page or on our website is legal advice nor should it be construed as such. It is not intended to apply to your specific situation or answer your specific questions.