Mediation v. Litigation regarding Child Custody

Posted on July 24th, 2015

As with almost anything in family law, the least contested the issue, the easier and less costly it will be for all the parties involved. Thus, the more issues the parties can agree upon outside of court, the faster and smoother the modification will be done.

In California, any request for a modification of child custody that is filed with the court will be accompanied by a mandatory mediation session, with a family law mediator that will be assigned by the court. If the parties cannot agree with the mediator, then the case will proceed to a court where a judge will ultimately decide. If the parties can come to an agreement with the mediator, then the mediator can help set out a modified custody order that they can then be signed by the judge. If the parents cannot agree, the mediator can write their own written recommendation to the court, that the judge will consider Contempt The Courts.

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The parties can also seek the services of a family law mediator, who is skilled in dealing with these specific issues, and may be able to draw up an agreement that is beneficial and equitable to all the parties involved. The mediator would be a neutral party and not a representative of either of the parties involved. Any issues not resolved by the mediator may have to be settled in court.

If the matter remains contested and the parties proceed with litigation, in resolving the issue the judge may order one of three things: (1) 730 Evaluation; (2) One-Day Parenting Plan Assessment, Parenting Plan Assessment. It is the judge who will ultimately order one of these if they deem necessary, however, either party can request one to the court. One or all of these may be used if there are minor children involved in the case.

1. 730 Evaluation: Here, the court will assign a licensed professional to look into the parenting practices of each party and access what the overall health of the child would be living in each situation. The evaluator may be a therapist, psychologist, social worker, or whoever the courts see as prudent for that particular matter. The professional may then testify in court as to what their findings were.
2. One-Day, Parenting Plan Assessment (PPA1): When the court determines that there are minimal issues to be dealt with, but because the judge does not know the parties personally or is fully familiar with everything, wants to gain additional information. A specialist, which like in a 730 evaluation may be a therapist, psychologist, or social worker, will conduct interviews and testimony will be done on that same day.
3. Two-Day, Parenting Plan Assessments (PPA2): When there are multiple contentious issues, the court will usually recommend a PPA2 where there could be multiple experts, as well as multiple days of interviews and testimony.

When a child custody matter goes through litigation, especially in family law, where the court system is completely clogged, each party in a sense is “rolling the dice” with their outcome. The decision making and course of the case is usually up to the lawyer, and ultimately the judge will decide. The outcome might not be particularly agreeable to either party or, more importantly, the involved children. In Mediation, parties are usually under a lot less pressure and are able to come to an agreement that is more mutually agreeable. The “uniqueness” of each party’s case may be better heard in this forum, and the parties can better control their own destiny, rather than it being in the hands of the court.