What happens during child custody disputes that crop up after you file for divorce? That depends on how you and other parent approach this. Headlines abound when celebrities and even the less-famous turn family court proceedings into a tug of war, using the children as weapons against one another. The cases that don’t make the headlines are those where the parents are civilized, sensible and focused on what’s best for the children. What’s most frustrating is when you’re the civilized, sensible, child-focused parent, but the other parent doesn’t share share that approach. We’ll talk below about what can be done in such a situation.
One of the first things that will happen is one of you files a request for the Court to make custody / visitation orders. Mediation will soon follow that filing. Mediation of child custody /child visitation disputes can be done either through Family Court Services (the mediation branch of the court) or, if the parents agree to use and are willing to pay for one, a private mediator.
The first thing you need to know is whether or not your county is a “recommending county.” The Family Courts of each county get to say whether the mediator “recommends” to the judge what the parenting schedule ought to be. In San Diego, court rules require the mediator, who would typically be a mental health professional, to draft a report with recommendations if the parents don’t reach an agreement. The way this differs from non-recommending counties is that in those counties, if no agreement is reached, the mediator is silent. No report, no recommendations.
The mediator will generally try to help the parents reach an agreement on a parenting schedule. If there isn’t agreement, the mediator makes recommendations. The mediator’s recommendations regarding child custody and child visitation orders are not themselves an order. However, the judge may then rely as much or as little on the mediator’s recommendations as the judge sees fit. Usually, it’s much. Even when it’s not, most judges will at least use the mediator’s recommendations regarding child custody and child visitation as a starting point to make its orders. [Note: these mediators deal only with child custody and visitation issues. They don’t get into support, property division or anything else.]
Understandably, then, you’ll want the best possible outcome / recommendation regarding child custody and child visitation during mediation. Paradoxically, you’re not allowed to have any support with you during mediation. Not your lawyer, your mother, and certainly not one of the children. You’re on your own in a scary, important meeting. This is where your cause is won or lost when it come to custody and visitation. It’s important not to underestimate the importance and value of mediation. This is really serious business. Train for it like an Olympic event. The outcome has far more profound aftereffects than the color of a medal! Your attorney should have a short list of professionals who prepare parents for this event. The time and money you invest in preparation will yield what may be the best return you’ll ever see.
The outcome of mediation has become especially important for seemingly unrelated reasons: child support is directly related to the amount of time the children spend with each parent
What’s the rule for deciding custody and visitation issues? Answer: What is in the best interests of the child? That’s a really big, broad question that doesn’t give you many specifics. Here’s the short “take-away” of this rule: The main question is not “What’s fair for the parents?” You’ll hear judges and mediators talk about providing the child with continuity and stability, about not disrupting the child’s life, and about maintaining “frequent and continuous contact” with each parent. Notice the absence of any use of the word “equal” in these phrases? Remember, these proceedings are not about ensuring the parents’ rights to be treated “equally.” They’re all about what’s best for the child. A parent who naively comes to court believing that the judge will begin with the assumption that the child should share “equal” time with each parent is sure to be badly disappointed.
Knowing what to expect in mediation and in Family Court – and why – means you’ll need information from seasoned professionals. Your attorney should know not only the codes and cases, but also, where possible, your judge’s individual quirks. Your “coach” for mediation, will ideally be a veteran of the very agency you’re training to encounter.
The watchword for all participants in Family Court proceedings is: Preparation. Preparation. PREPARATION!
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