In California, whenever there is a litigated dispute over custody and visitation of a child, mediation between the parents is mandatory before the court can make an order on child custody and visitation. California Family Codesection 3170 provides:
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.
As a practical matter, this means that when a case for child custody or visitation is filed, the case is referred to Family Court Services for mediation. The mediators in Family Court Services are skilled and trained to access the child custody dispute and attempt to get the parents to reach an agreement on a parenting schedule.
More meaningful, the requirement for mandatory mediation on child custody and visitation is an indication from legislation that as a matter of public policy the persons most able to decide how children should be parented in separate homes is the parents themselves. Often times, I represent clients who believe that the court (i.e., the judges) will be able to solve the problems they have with co-parenting. Or, that the judge will be able to clearly see that the other parent is not a good parent or role-model for their child.
In reality, family law judges are hard pressed to determine a suitable visitation schedule or arrangement. There are many reasons for this: time constraints and the "vacuum" of the courtroom or two major disadvantages facing judges when they are called upon to make child custody and visitation orders. Family law judges face incredible case loads and are only able to devote a small amount of time to each case. Given judges' time constraints, it is, understandably, a challenge for them to see a complete picture of the family dynamics and what is in the best interest of the child. Further, the judge can only receive admissible evidence and hear argument within the confines of a courtroom. They do not get to see the child at home with parents and, usually, never get to meet the child. They must base their decisions on testimony on life outside the courtroom and sometimes receive child custody evaluations (something that is typically cost prohibitive to the parents). Given time constraints and limited information, judges often rely heavily on mediator's recommendations if the parents are unable to reach an agreement. In this way, a judge's decision is made in the "vacuum" of a courtroom and not based upon what is really happening in the child's life.
Only parents are able to make decisions regarding their children that is based on the real context of their child's life. To that end, legislation has been enacted to ensure that the best people (i.e., parents) able to make a child custody and visitation schedule are given that opportunity with the aid of a skilled and trained mediators. This mediation service is free of charge to the parents and presumably included in the court filing fee.
It is important for parents to understand what the mediators will be doing. This is why a mandatory mediation must be completed prior to the mediation session, to inform the parents on the parameters and procedures of the mediation.
Parents should be prepared to discuss relevant issues and provide the mediator with documents, reports, and other information that will be helpful to the mediator in attempting to resolve the dispute. The ability and preparation of the parent for mediation is also important because, if an agreement is not reached, the mediator will provide a report and recommendation to the court. In the report, the mediator will summarize each parents position, concerns, and arguments. Based on that, the mediator will also provide a recommendation to the court.
The mediator's recommendation is often times adopted (perhaps with some changes) as the court order for child custody and visitation, if the parents can't reach an agreement. Given the relative frequency of mediator's recommendation being adopted as orders of the court, the importance of mediation cannot be overstressed. Parents should be prepared to provide succinct information and reasonable desires, in order to influence the mediator's recommendation if an agreement is not reached. That is not to say that the goal of parents in mediation is attempting to sway the mediator to his or her side. Rather, the goal should always be try to reach an agreement with the other parent, but barring that, to provide important and relevant information to the mediator so that the mediator can be well informed and able to provide a suitable recommendation.
Ultimately, if the parents are not able to reach an agreement and there are enough issues in dispute, a trial on custody and visitation may be unavoidable. However, parents should work in good faith towards reaching an agreement because they really are the persons in the best position to make that decision for their children.