One of the most important things to know before your custody hearing is whether or not your local court relies on child custody mediators to make recommendations to the judges. In many counties, parents involved in custody disputes must attend a mediation session (with a neutral other than their judge) before they can have their custody matter heard before a judge. Of the counties that require pre-hearing mediation, there is another important distinction: whether the mediator will make a recommendation about custody to your judge. Jurisdictions where the mediator makes a recommendation are called “recommending” and where the mediator does not are called “confidential.” Generally, attorneys are not allowed to attend mediations in either setting.

In confidential counties, prior to your custody hearing (maybe even the same day) you will meet in-person with a mediator. In many confidential jurisdictions, the mediation session is geared toward quick resolution rather than fact-gathering or analysis of your child’s interests. If you reach an agreement, your hearing is cancelled since there is nothing for a judge to decide. If an agreement is not reached, you appear before the judge for a ruling. The mediator does not discuss your mediation with the judge. During the hearing the judge will determine a custody arrangement in the child’s best interests based on any written declarations you submitted prior to the hearing as well as any testimony you give during the hearing. According to the California Courts website, in confidential counties, “mediators do NOT make a recommendation to the court about child custody and visitation. If the parents agree on any issues, the mediator may provide the court with a written summary that will include the issues the parents agree on.”

In recommending counties, the process is similar but there is a drastically different outcome. Prior to your hearing with a judge, you meet with a mediator. The mediator is typically a trained social worker or marriage and family therapist who also has experience with families going through divorce. The mediator will meet with you and the other parent for approximately an hour and will try and help you reach an agreement about co-parenting. During the meeting you will probably discuss your concerns and preferences. If you are unable to reach an agreement, the mediator writes a detailed recommendation to the judge. The recommendation will likely include details such as physical custody schedules for weekdays, weekends and holidays. The recommendation may also include the mediator’s impressions of either parent, recommendations for counseling, co-parenting classes or drugs/alcohol monitoring. In recommending counties, the judge will often adopt the mediator’s recommendation as his/her order. According the California Court website, “In some local courts, mediators make recommendations to the judge about child custody and visitation. If you and the other parent cannot agree on a parenting plan through mediation, the mediator is asked to give the court a written recommendation. This recommendation will contain the mediator’s opinion about what parenting arrangement will be in your children’s best interest. Both of you will also get a copy of the recommendation.” At your hearing, the judge will listen to any disagreements you may have with the mediator’s recommendation before making a final ruling.

In both confidential and recommending locations, your custody dispute will be decided in a relatively short period of time. So, it is important to make good use of your time with the mediator and judge. Here are a few ideas:

  • Make a list of your top ten concerns and prioritize them. Come to the mediation with a short list of prioritized concerns so that you don’t waste limited time on less-important issues. For the less important issues, be prepared to reach agreements quickly to move them off the table.
  • Bring a calendar that includes the kids’ school and extracurricular schedules (including holidays) and parents’ work schedules. You will be asked to reach agreements on detailed issues like three-day weekends, transportation to extracurricular activities, summer vacations, etc. A prepared calendar will reduce vague scenarios in your agreement or order.
  • What critiques or complaints will your co-parent have? Think about constructive responses before you go into mediation.
  • Be prepared to listen to the mediator and seek guidance. You may have difficult issues that seem insurmountable: scheduling nightmares, repetitive disagreements about child rearing or travel desires. Your mediator probably has experience dealing with each of your concerns and may have good suggestions and solutions.