Mandatory Child Custody Mediation in California

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.  

United States vs. Windsor - IRS Declares Relief

In United States vs. Windsor, the Supreme Court struck down core provisions of the Defense of Marriage Act of 1996 (DOMA).  Last week, the IRS announced in a press release that same-sex couples "will be treated as married for all federal tax purposes," including for income tax filing, gift and estate taxes, individual retirement accounts, and in other tax regulations where marriage is a factor.  

Treasury Secretary Jacob J. Lew stated in the release that the "ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve," Treasury Secretary Jacob J. Lew said in the release.

The tax benefit granted to same-sex couple is regardless of whether the couple lives in a state that recognizes their marriage as lawful or not.  Secretary Lew stated that the ruling "assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change."  

Maintaining the Status Quo During Divorce Proceedings

In California, after filing for divorce and while your case is pending, the law provides for a number of ways to ease the separation from your spouse.  These prophylactic measures are meant to ensure that both parties to the divorce receive the benefit of the marital community while litigating their case.  There are number of automatic restraining orders (ATROs) [Family Code Section 2640] that become effective when the summons is issued and served upon your spouse.  They are found on the second page of the divorce summons and prevent each party from:

Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;

Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;

Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and

Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party. 

In general, these ATRO's prevent the other party from displacing community property or the parties' children, such that the other party would be placed at a disadvantage during the divorce.  The portions regarding not canceling any insurance for the benefit of the family also serves the same purpose and helps ease the transition from being a married couple to being self-sufficient.  These protections are necessary to ensure that no unfair advantage is gained by either party in the proceeding while they are going through litigation that can potentially last for months or years.

Besides ATRO's, there are other mechanisms of the law that help maintain the status quo, or ease the transition of a divorce.  These include temporary child custody and visitation, temporary spousal support, and pendente lite (or interim) orders for attorney fees.

Taken as a whole, the law has attempted to create fair and equal divisions of the bounty of the marital community during the time that the parties are litigating their divorce.  Sometimes this becomes difficult because resources are stretched thin when a couple decides to divorce.  Ultimately, it can be a rocky road because dividing something in half never equals the sum of its parts.  However, the alternative to these stop-gap, or prophylactic measures, would likely be that one party to a divorce is left holding the short end of the stick.  

*This information is not meant to constitute legal advice.  To learn more about divorce, contact our attorneys at Senh Law Associates, (925) 408-8546.

Ruminations on Divorces, Custody, Support, and Other (Not So) Fun Topics

Can't see the forest from the trees.  That is an old saying, the origination of which is up for debate.  Put simply, it means that you lose sight of the larger situation when you focus on small details.  Just like when you're in the middle of a forest, all you can see are the trees and not the forest you are surrounded by.  But, if you could see the forest (the "big picture", that is), then you would have a deeper understanding of where you are at.

I begin my blog with this thought because as a practicing family law attorney, I too often see people losing touch with the "big picture" because they are focused on the small details.  For example, sometimes it would make more sense to settle your divorce, move on, find another partner or spouse (or not).  But, at the very least, search for happiness somewhere it can be found.  Instead, parties in a divorce get caught in the trap of occupying themselves with minutia, the small details.  They may fight over valueless bits of property and in the process expend much more money in attorney fees and litigation costs.

The "big picture" is really about life, your life.  A divorce is understandably a sad, tragic, emotional period of time.  You are parting with the one other person in this world that you promised to spend the rest of your life with, through good times and bad.  But, it just didn't work.  The reason doesn't matter, in law or in life.  It just is time to find yourself in a different life and give yourself a chance to be happy again.  It's not easy, but this realization can save a party to a divorce further headaches, turmoil, and a delayed start to once again finding happiness.

I hope to provide in this blog some relevant information about family law and, in the process, also my observations on human relations and ways of trying to see the forest while in the trees.