Let’s Make A Good Deal – New Mediation Requirements

Among the many services and community benefits provided to the residents of California is free access to a group of highly trained, licensed, and experienced child custody counselors. These professionals staff an agency of the Family Court Services, formerly known as the Conciliation Court, which our Legislature authorized many years ago to provide mediation to the public for child custody and visitation disputes. Family Code §§ 3160 et seq.

Not every county in the state has a large organization providing mediation services. However, Los Angeles and surrounding counties enjoy a wealth of resources designed to assist parents to resolve disputes over the best plan for raising their children once they have decided to separate. Los Angeles County currently has “confidential mediation”, meaning any discussion by the mediation attendees cannot be disclosed to anyone else, not even the judge assigned to the case. All that is disclosed is that the parties mediated but no agreement was reached. Exceptions to this privacy exist but only arise occasionally.

Other counties, such as Ventura and Orange, utilize models known as “recommending” or “reporting” mediation. The parents and mediator meet, the children who are old enough to communicate are interviewed, and the mediator works with the parents to reach a feasible parenting plan for custody and visitation. However, when a case has been filed, if the parties do not come to an agreement, the mediator writes out their recommended parenting plan and sends it to the assigned judge. The parties are able to challenge or support the terms of the mediator’s plan at a court hearing and the judge will decide to accept the recommended plan, accept it with limited modifications, or enter orders with significantly different custody and visitation.

However, this mediation process will change, effective on June 1, 2018, in Los Angeles Superior Court. Like counties using recommending mediation models, Los Angeles custody mediators prepare a Parenting Plan Agreement and Stipulated Custody & Visitation Order (“Parenting Plan”) memorializing the terms of the custody orders negotiated during mediation. For the last several years, either parent who developed second-thoughts about the Parenting Plan could file “objections” within 10 days after execution. Effective June 1, 2018, the 10 day period will be cut to 5 days.

Most people are familiar with such “cooling off” periods in connection with purchases of items door-to-door, certain vehicle transactions, etc. In the child custody realm, objecting to the Parenting Plan operates in the same fashion, as a recision of the agreement. This necessitates a hearing by the Court over the custody dispute, rendering the mediation and Parenting Plan a nullity. This may lead parents and attorneys non-expert in Family Law to wonder how this change will affect them.

This is not the first time the cooling off period has been revised. For many years after child custody mediation became a required step in custody litigation, the Parenting Plan came with a “sour grapes” period of just 3 days from signature date. The brevity of time caused much stress and frantic litigation maneuvering, which led to the adoption of the ten-day recision period. This long duration for cancellation also created problems for the parties and the courts.

Parents would often wait a few days to a week before integrating the new Parenting Plan into their children’s lives, only to learn a few days later that the other parent had re-considered the efficacy of the new schedule. This also caused the calendaring blanket to be pulled out from under the staff of the Family Law Departments. They could not be sure of their case calendar for any given day, often until the actual day set for the custody hearing. With many mediation appointments being set anywhere from 10 days or less before the date set to hear a custody case, judges and commissioners were left to review opposing papers filed by the parents at the last minute. Thus, children, parents, and court staff lived in a state of limbo.

It is feared that reducing the waiting period from 10 days to 5 will cause parties to be less willing to accept Parenting Plans not entirely favorable to them (and, of course, to the children), adding to the size of family court calendars. Some feel that a substantially smaller number of days to ponder the ramifications of a new Parenting Plan may deprive counsel in this field enough time to identify and come up with acceptable alternatives, which the other parent will also have to review and approve, to head off the impending hearing. The waste of the parties’ financial resources could be considerable.

However, that need not be the result. Rather than seeing the change as a handicap, it can serve as a means of sharpening the focus on the most important aspect of a family law case: the children’s welfare. It will allow counsel and the client to spend a modicum of time immediately before the mediation to come up with a list of high priority issues, preferred answers to them, and some reasonable alternatives. Having witnessed the way attorneys and clients dealt with a 3-day recision deadline and the much longer 10-day hiatus, it is not unreasonable to feel quite hopeful that the 5-day cancellation right will be very effective and workable when parents arrive at a new Parenting Plan during mediation. As with many family law issues, meeting with counsel prior to mediation, or any court appearance, can help parents prepare and advocate for their child’s best interest.