Separated parents often disagree over how to divide the time between each of them, with all the activities in their life and with their children. Sometimes setting up a clear and agreeable parenting-time schedule (or “visitation” schedule) is more difficult than divvying up loose catnip to frantic kittens. Often one parent simply won’t cooperate to arrange a schedule, other times the issue is defining the schedule. Sometimes parents clash over vacation and holiday time, or what activities and what friends are appropriate or most important, or what arrangements are and are not acceptable for childcare or schooling, and on and on. If you encounter any of these conflicts, it’s helpful to know what legal options you have, and especially helpful to know what to expect if you decide (or need) to ask the court to assist you in making enforceable orders or setting schedules for you and your family to follow.
In every case where custody or visitation requests are made, “mediation” or “child custody recommending counseling” is mandatory. In this process, parents are required to meet (usually together) with a professional typically trained as a social worker or therapist to try to resolve their disagreements before appearing before the judge.
What should you expect as you begin this process? How do you put your best foot forward and achieve your ideal results?
1. The Basics
First, find out if you reside in a “recommending” or “non-recommending county.” This distinction is extremely important. In a recommending county, what used to be called custody “mediation” is now usually known as “Child Custody Recommending Counseling” and the mediator is called a “Child Custody Recommending Counselor.” The change in language is important because in a recommending county, the custody counselor is not a true mediator. In short, rather than the process being confidential as in true mediation, a report will be drafted for the Judge – one which you will have little to no control over. This report will include a “confidential” summary of the issues raised, and a non-confidential recommendation to the Judge for custody and visitation orders. This in unlike traditional mediation, where everything the parties say to the mediator is legally protected and confidential unless explicitly agreed to otherwise by both parties.
Non-recommending mediation is closer to true mediation, which means that everything said in mediation is confidential, with the exception of actual signed agreements.
In a non-recommending (i.e., mediating) county, the Judge will not receive a report from the mediator if agreements are not reached; there will only be a record made to confirm who appeared and that an agreement was not reached. In some counties (including San Francisco) the mediator may provide a very brief, one sentence description, of the visitation schedule each party is requesting. Only if agreements are reached, will the mediator record the agreements for the parties, confirm them with the parties and then give a copy to the Judge. The mediator will not make any other record of the issues discussed by the parties, and will not make recommendations to the Judge.
Some non-recommending counties in the Bay Area include: San Francisco and Santa Clara (with some exceptions).
Some recommending counties in the Bay Area include: Alameda, Contra Costa, Marin, San Mateo, Solano, and Sonoma.
2. The Goal
Many clients are apprehensive as mediation or custody counseling approaches. What should you expect? How should you prepare? What should you bring? These are all excellent questions and knowing the answers will ensure that you make the best of your custody mediation or recommending counseling appointment.
Whether your county is recommending or non-recommending you should approach the appointment with a general goal in place of being open to exploring new ideas, while aiming to reach an agreement. Treat it as you would a slightly less formal court hearing where you are being called on to make a good presentation of yourself and your proposed resolutions. You should give the mediator or custody counselor the same respect you would give the Judge. You should establish a good rapport, because after all, mediators and custody counselors are people, too. You should remain respectful during the appointment towards the other parent, because if you appear angry, the mediator or custody counselor may question the motives behind your requests.
These tips are especially important in recommending counseling because the mediator will write a report that expresses opinions and observations of you and the other parent during the session. However, these tips are also important in non-recommending mediation because they will help you express yourself better and increase the possibility of reaching an agreement (there is always a LOT of risk in letting a judge take control over your life). It’s always more likely that you will reach an agreement that will be respected (followed) by the other parent if you are professional and respectful in reaching that agreement. And, you want the mediator to understand you, empathize with you and want to help you explain the strength of your points to the other party.
A common mistake is to become overly emotional and rehash past relationship problems that have little or nothing to do with the issues at hand, or which tend to focus on punishment or blame. This detracts from the more important issue you have at hand — how to move forward, and how the proposed changes will benefit the children.
3. What to Expect
Your appointment will typically last anywhere from one to three and a half hours. You should plan to arrive on time and ensure that you do not miss your appointment. In some counties, you will be fined if you miss the appointment, and you may not be able to schedule another session before your court date. Attorneys are almost never allowed to attend. There are limited exceptions, usually when both parties agree in advance for attorneys to be present. You and the other parent will also meet together with the mediator or custody counselor, unless there are documented allegations of domestic violence and a request is made by one parent in advance for separate sessions. Make sure you do this or consider this if you are frightened of the other parent and if there has been any domestic violence in the past (documented or not).
Some mediators or custody counselors will direct the conversation closely and ask specific questions of each party. Others will allow the parties more freedom to raise issues of concern. There is no way to anticipate the style of your session, but here are some important tips about the process:
- If you need a break at any point, ask for one. You can call your attorney on a break if you have a question.
- Do not agree to any provision that you are not absolutely sure you can or should follow. Keep in mind that if you sign an agreement, you are signing a legal contract that the Judge will enforce. You can always refuse to sign the proposed agreement and request time to think something over or review it with your attorney. Agreements can be difficult to “undo” later.
- Do not let the other parent or the mediator/counselor overpower you. If you are not able to address points that are important to you, ask the mediator respectfully to be heard. Remember – although it is mandatory to attend mediation, it is always only voluntary to make and sign an agreement.
4. How Can You Prepare?
Before attending your session, make a list of topics you would like to cover. This will help you organize your thoughts initially and stay on track during the session. A bullet point list is probably good for this so you can glance at it quickly. If you have an attorney, discuss the list with them prior to mediation, and consider practicing with your attorney. Do not bring anything that you don’t want to share with the other parent, though. You won’t be allowed to show a document to the mediator/counselor without showing it to the other parent.
Before the appointment, draft your ideal parenting time schedule. This should include specific days and times each parent will have visitation. You can bring a marked-up calendar if it’s a complex schedule. You should include proposals for parenting time during the holidays that your family celebrates, as well as for school breaks. It may also be prudent to include a proposal for the transportation required for visitation.
In order to get what you want out of mediation, you have to know what you want in advance of actual mediation. You should consider your child’s age, holiday or vacation plans you may already have, school schedule, activities, your work schedule, and the other parent’s work schedule. If you know that your proposed schedule varies from the other parents’ proposal you should be prepared to explain why your proposal is in your child’s best interests (not necessarily what’s most convenient for you). Does it promote consistency in the child’s routine? Are you the primary caregiver? These are examples of things you should consider and be prepared to discuss.
5. What Should You Bring?
What you bring with you will vary depending on the issues at hand. If you are making an allegation about the other parent, you should bring evidence to support this and have copies to share with the mediator/counselor AND the other party. (Please note that in certain counties, like Alameda, the mediator may not review anything that was not filed with the court. However, in Contra Costa County, parties are permitted to bring unfiled items to custody counseling for the counselor’s review and consideration.) You should ask your attorney about local practices, review the court’s local rules online, or bring the items and use them only if they are permitted.
For example, you may have text messages between you and the other parent that show they are consistently late. Less is more. The mediator will often refuse to review lengthy information. Another example is the child’s report card, if academic performance is relevant. You may want to bring a neighborhood map if you are advocating for a school choice that is closer to your home. The mediator may include these items in the report and may consider them in making a recommendation, but do not force the issue. Listen to what the mediator says closely for verbal cues about what he or she thinks is most important. The mediator/counselor’s opinion often offers valuable insight into what the judge might also find important.
6. Reaching a Resolution
If an agreement is reached, both parties may leave a bit disappointed; because both parties will have had to concede some points to the other parent. Compromise is often key, but not in areas such as your child’s safety. Work with your attorney before to identify areas of possible compromise, versus areas to remain steadfast and firm on. Some parents compromise too heavily in the heat of the discussion, only to realize that they cannot readily carry-out the agreement they reached. Other parents are overly stubborn, and miss opportunities to secure a hard to reach resolution out of being too focused on a smaller detail.
Consider important short term and long term implications of your agreement before you agree to anything. For example, have you considered traffic during commuting hours? Are you agreeing to an equal parenting time agreement, when you know that the other parent cannot handle this? Some mediators and custody counselors are quite forceful and may not know the whole situation. Take the time to think things over and take a break to regroup. A good agreement will rarely be lost just because you needed some time to think it over.
If you can reach a partial resolution on some easier issues, this is often better than no resolution. The fewer issues you need to resolve on your court date, the more time, focus and control you often have over the result (typically, cases with agreements are also called before cases with no agreements, reducing time in court and getting heard early when the judge is sometimes more sharp, not worn from hearing a long line of arguments). You will potentially save your time and money in court.
Mediation and custody counseling are also ideal forums to address some of the more “routine” but often very detailed aspects of your custody situation, such as: specific days and times of your parenting time schedule, including holiday schedules, exchange logistics and timing, phone call procedures and schedules, and other communication methods, as well as participation in extracurricular activities. These detailed discussions are best-suited for mediation/counseling because, unlike in the public, often crowded courtroom with the judge, you will actually have time to talk these details through in a guided and private setting. The mediators and counselors (unlike the judges making the “bigger” legal decisions) have helpful tools at hand for doing these detailed schedules. You also will not be under as strict time constraints. Often a judge simply won’t be able or willing to do the same in the limited time allotted to hear your case. You will also probably be less nervous than you will be in front of the Judge.
Remember – disagreements are opportunities for improvement. You have many options around how to approach disagreements over your children with the other parent. Court action, with mandatory mediation or custody counseling, is one option. To prepare for this or to explore your options more, we welcome and encourage you to consult with us or other local attorneys practicing in family law. Initial consultations are a good way to begin researching and preparing how to best resolve these kinds of disputes.
This site and our blogs are for informational purposes only and do not constitute legal advice.
 Confidential here means that only the court administrators, parties, their attorneys and any consulting experts in the case will be permitted to review the full report. The report is not available to the public and is kept in a confidential portion of the court’s case file.
 In Santa Clara County there is an Emergency Screening process for domestic violence situations; the emergency screener will draft recommendations to the Judge. Similarly, in San Francisco County there is a Tier 2 process, which may include interviewing parents and/or children but generally involves talking with schools, therapists and other people involved in the child’s life and providing recommendations based on these contacts to the Judge. Tier 2 is generally reserved for more complex custody issues and generally must be requested by the parties or their attorney’s.