One of the most contentious parts of a divorce is resolving child custody issues. It can be a volatile flashpoint and create costly roadblocks that could add significant delays to reaching a final settlement.
Child custody mediation is a specialized form of divorce mediation that focuses strictly on working out custody and visitation issues.
When both parents are willing to compromise and work together, a child custody mediator can help reach a reasonable compromise that will allow everyone to move forward with their lives in a fair and equitable manner.
I sat down with California family law attorney Diana L. Martinez to get her insights on how child custody mediation can benefit parents and children in a divorce process.
Let’s dive into that conversation.
What is child custody mediation in California?
Diana L. Martinez: Child custody mediation is where parents will meet with a neutral facilitator. If it’s through the courts it can be a social worker, usually it’s court staff, to try to resolve only child-related issues. They don’t typically talk about child support, just about custody and visitation. I prefer calling that a parenting plan because that’s typically what they’re trying to work out. If they reach an agreement, they can sign it there.
If they reach an agreement, then that gets attached to an order and the judge will sign those orders making them binding and fully enforceable.
What’s the difference between a recommending and a non-recommending county?
In a recommending county, if there isn’t an agreement, the mediator will give the judge a recommendation on what the parenting plan should be, on what the custody and visitation orders should be.
Depending on the judge, they often will just adopt it, or they’ll make minor changes. But oftentimes, it is adopted by the judge. Again, that’s if parents don’t agree.
In a non-recommending county, if parents don’t agree, the discussion that happened in mediation stays confidential. There is no recommendation that goes to the judge. The parents will now go on to the court hearing that prompted the custody mediation in the first place.
Who is facilitating child custody mediations? How does the custody mediation process work?
Court mediators, usually social workers, but they can also be therapists, typically lead the custody mediations. They may have some mediation training, and most often the training is based on their professions. This is different from the general, voluntary mediation that some courts also offer – that’s usually done by private practice lawyers who have met specific training and experience to act as volunteer mediators. We are not supposed to handle the child custody and visitation parts; just the general divorce issues (assets, debts, spousal support).
Many of us in private practice do frequent, family law-specific mediation trainings, which includes topics like working with high conflict personalities, non-adversarial communication, signs of divorce stress in children, cultural awareness in divorce, ethics and confidentiality in mediation, and so on. I am also a lecturer and trainer for those who want to be mediators, so I probably am more involved in training and research of current mediation developments. There are no standardized requirements to be a mediator, so it is important to understand the experience and style of the mediator, as well as whether or not they are continuing in mediation training versus their own general professional training.
What is the difference between child custody mediation in a court setting versus in a mediation that’s outside of the court process?
You’re only going to get the court mediation for custody and visitation if you have requested orders related to a child in your divorce or in your parentage case or separation. The way that happens is let’s say dad wants to have more time with the child or to set some orders and files a request for orders.
When they go to file that with the clerk, at that point, the filing clerk is going to say, “Okay. You have a child issue, so you have to go to conciliation court,” which is sometimes what it’s called. It’s simply another phrase for child custody mediation. Different courts have different names for it. While mediation is supposed to be voluntary, if you are requesting orders that have to do with minor children, this mediation is mandatory.
They’re basically putting an extra step in to help move that process forward?
And it’s different from traditional divorce mediation?
Yes. It is different because it is child-focused. Judges are not child specialists. They are not experts in children. Even if they have children.
So that’s why the courts go through that additional hurdle.
Also, quite frankly, judges and courts are overwhelmed. There are a lot of cases, and if they can get this off their docket, that’d be great.
How does the child custody mediation process work?
Once you’re in this type of mediation, it’s not so facilitative like in some out-of-court processes (such as more traditional divorce mediation). Often, it’s more directive.
It’s like, “Well, dad, would you compromise here? And mom, would you compromise there?” So, it’s a little bit more of a push. That’s what people can expect there.
Child custody mediators will hear from each side. They’ll give parents a small amount of time. They’re not going to give parents the whole day necessarily, because they’ve got other cases that they have to attend to as well. You may have an hour. You tell your side, the other parent tells their side, and then this mediator is going to try to find something in between.
That’s typically how custody mediation works in the courts.
Are the kids involved in that process at all?
Each court has their own procedures, but, generally, no. Your children are not there at all.
Do custody mediators ever interview the kids as part of the process, if needed?
Not typically in a court custody mediation. If there’s a need for a more in depth investigation, then the court will appoint a 730 custody evaluator.
What is a 730 custody evaluator?
That’s stands for Evidence Code 730. It’s much more involved, and often includes interviewing the kids.
Can you get into greater detail on how the process works?
When you do mediation related to custody and visitation either through the courts or with a private mediator, it varies widely. There’s no one right way to mediate. There’s not even a mediation certificate. You can go out and hang your shingle right now. So, you want to pay attention to what that mediator’s approach is.
Some mediators are facilitative, and they will work with both parents to try to focus on what are their child concerns, what are their schedules in real life; they facilitate the discussion based on the unique real-life goals, experiences, and impact for that family and each individual.
For example, people will walk in and say, “I want 50/50 custody.”
Well, which half of the kid do you want? Are you going to take the day and the other parent takes the nights? What are we talking about when they talk about percentages?
So, some mediators will focus more on the real-life impact.
What is the child’s schedule? What are the parents’ schedules? What parent has been more involved that maybe we need to give some tapering-off time to get the other parent more involved? Is there re-education that needs to happen?
Sometimes we have parents who will say, “He doesn’t even know how many socks to buy them. He doesn’t know what to feed them.” And it sounds really stupid, but when you have one parent who’s always managed that and, now, you’re taking that away, there’s going to be pushback and there’s going to be fears.
How is something like that situation resolved?
Sometimes what a mediator, especially if they’re a legal mediator trained in co-mediation and/or collaborative divorce., will do is they’ll say, “You know what? It may be useful to bring in a child specialist mediator.”
Now we’re talking about co-mediation. So, you’ve got two mediators who are specialized in different areas. One is an expert in the law, the other is expert on the children. A child custody mediator might say at that point, “I’ll take this parent shopping, and we will talk about diet and nutrition.”
They work with the parents to help them create that parenting plan. And then the legal mediator can put in the legal aspects of it so that it is binding and fully enforceable and they’ve covered all the legal issues.
It’s a little bit more empowering for the parents to be able to be parents.
They are the better deciders for their children. They know their children, as opposed to having someone who knows nothing except what’s legally relevant making those decisions for them or a recommendation for them. It’s more empowering in that regard.
Talk a little bit about how a child custody mediator can sometimes be used also to help resolve child custody issues in a collaborative divorce along with the whole gamut of other issues.
It is similar to a co-mediation with a child specialist. This is because in both collaborative divorce and in co-mediation with a child specialist that child specialist is neutral to the parents.
They are the voice of the children without actually bringing the children in. They’ll talk with the children individually, and it’s always age appropriate. Sometimes it’s just drawing or playing and sometimes it’s more of a conversation.
They’ll also meet with the child and each parent. They’ll meet separately with the parents. Their focus really is to keep the parents focused on the child during all discussions.
Can you give me some examples of how this might work?
You’re in a collaborative meeting on a financial issue. Let’s say we’re talking about the pension plan or we’re talking about allocating the income, what people call spousal or child support, and the child specialist is actually present. And when the parties start to get too much into the weeds, into the ego or the fight or blame, the child specialist will step in and say, “Speaking as little Susie or little Timmy, I feel like if I wouldn’t have asked for that expensive summer camp you guys wouldn’t be getting divorced.”
Shit just got real, right?
That brings the parents back into focus on why they chose that collaborative process. One of the phrases we’ve often used is “we put the children at the center without putting them in the middle”.
They’re not being interviewed by a 730 custody evaluator. They’re not having to go up and testify in court or having to talk in chambers with the judge. They’re not being put in a position to say which parent they prefer – to make the adult decisions of where they will live and how much time they will spend with each parent.
I mean, can you imagine? How nervous do you feel if you’re being questioned by a judge or an investigator as an adult? Now we’re going to put a 14-year-old or a 15-year-old in the middle of that? Or a 10-year-old, god forbid?
It’s not that parents are bad. It really isn’t. It’s that they’re under such extreme stress.
They lose focus…
They lose that focus. So, that’s the purpose of a child specialist mediator in a collaborative process.
It’s continuing to bring them back around to what it is that’s important to them which is so easy to lose sight of when you get into this win or lose mentality.
Exactly. The role is also different in an out-of-court process than in-court because the child specialist will also work with the parent that’s struggling.
For example, sometimes you have the parent who doesn’t realize that telling their kid on their way to see the child specialist, “Make sure you tell the child specialist that your mom did this or that your dad said that.”
They don’t see how that’s actually very harmful, not productive. So, we work with the “struggling” parent to understand that.
We’re not always going to change the person. Sometimes, people are broken and they’re not going to be able to process that information. So they also work with the other parent so that they don’t react to what the other parent is doing.
It literally takes one parent to create a stable environment, a sense of safety for the kids, no matter what the other parent is doing, as long as that parent doesn’t keep feeding into it. And that’s where the child specialist can help.
It’s not only the parenting plan, it’s also helping the parents create that balance.
Which is certainly a lot easier said than done for that one parent to be the responsible one knowing how triggered they’re going to be.
But still, if they’re able to put the kids at the center…
Too often, when people experience that unstable behavior, their first thought is, “I’ve got to get a judge involved.”
Then they go to court and they get a ruling, and it’s like, “The judge totally didn’t understand. I don’t know how the judge allowed this.” It’s because the information that the judge is allowed to use is limited. So, unless there’s molestation or severe abuse or drug abuse, or a DUI with the child in the car, you’re not necessarily going to get the orders you want, just because the other parent doesn’t know how many socks to buy the kid, for example.
And then afterwards, what have you learned? Every time there’s a problem, you’ve got to go to court.
When we do a mediation or a collaborative process outside of that process, most parents learn that there’s a different way to communicate. They have the ability to problem solve. And if they can’t find a solution, they can always re-engage their mediation or collaborative team to help them stay out of court.
So, trying to empower them with the tools that they need to solve problems is the key?
Because they’re going to continue to be co-parents at least until the kids are 18, but really, a lot longer than that?
Yes. When that divorce is done, when that custody battle is done, it’s not done. We had Judge from Orange County; he was the presiding judge for a time. He’s retired now. And he came to me after one of our presentations and he said, “I just want to thank you, because when I finish with a contested divorce or custody battle or whatever it may be, next month someone’s coming back wanting to change my orders. You guys finish through mediation or collaborative, I never see them.”
So, it’s learning a new way. But you have to have parents with that foresight and that willingness to learn a new way; to recognize, “Hey, it matters where the other parent lives and how much they can afford because my kid’s going to be spending time with them. That’s where my kid’s going to live when they’re not with me. It matters because someday my kid may have a medical emergency, and we have to make a decision together. Or, we both want to be able to visit grandkids together or go to a wedding together or a graduation and not create additional stress.”
My issue with custody mediation in the courts is, it is just for the immediate problem, and that’s way short-sighted, especially when you’ve got young kids. But that’s the best that we can do if parents are not willing to try a different approach, one that’s more long-term.
What are some of the mistakes that you see or the mistakes to avoid in custody mediation?
When people go into custody mediations one of the biggest mistakes they make is coming into it trying to completely vilify the other parent. There may be really bad acts, there may be some that are just amplified in your perception.
If you come into it with, “They’re the bad guy, therefore, I should get full custody,” the mediator’s going to see right through that. It is not all one-sided.
So sometimes you have people who will dominate the conversation and just vilify, vilify, vilify and not really talk about the kids, which is what a mediator’s going to be looking for. In those cases, is this person really focused on this child, or is this their own pain coming out?
The other thing I see is people come in totally unprepared, totally lacking in knowledge about their own child.
You want to have fifty percent custody and you’ve never even been to a parent-teacher conference? You don’t even know what your kids are doing, as far as extra-curricular activities go? You’ve never been to one soccer game?
You have absolutely no connection to this child, but you know you’re going to have to pay more if the other person gets more time. They see through that.
And to that point, a lot of times in marriages there’s one parent that has a really active role. Maybe they’re working 90 hours a week to provide financially and that’s all that they’re doing. And then the other parent is providing and managing the household and providing for the kids. So, in some cases, the person that was working really hard now steps up and wants to take an active role.
What’s the advice that you would have for them, where they maybe haven’t been involved because there’s been this division of responsibilities, but it’s been mostly just … that’s the dynamic, and now they do really want to be involved?
That’s so normal. And the reality is, now they don’t get to come home from work and work with the kids on their homework or tuck them in at night or have dinner with them, even if that’s all they ever did.
My recommendation would be if you have been the parent who was not the primary childcare provider, you were the one who was always out working, before the custody mediation, start showing that you have an interest.
Go to your kids’ school and find out, “Hey, what’s the calendar? I want to know what the schedule is. When is Grandparents Day? When are parent-teacher conferences?” Make that effort. Not only does that show the mediator the interest, it shows your kid the interest, quite frankly.
Now you’re going to have that child telling the other parent, “Oh, is my other parent coming? I got to see my other parent. I got to do this.” The natural result is it starts to show everybody that there’s a genuine interest, this isn’t just about child support.
A key is not waiting until there’s an order to step up, but actually stepping up for the sake of stepping up, and then the rest of it will, hopefully, take care of itself?
Exactly. Don’t wait!
If you’re in a very adversarial process, you know what the other parent’s going to say.
“Look, he or she doesn’t arrive on time. I got the text at the last minute saying Hey, I’m not going to be able to pick up little Johnny.'” And those kinds of things.
All of that’s going to come through. And it’s better for you if you can come in and say, “You know what? I was doing that, and here’s what I’ve been doing since.” You’ve got to show that interest.
The other thing is, get the hell off of any social media that you’re on. Just get off of it, because those pictures of you with some half-naked lady or you with all these beer bottles and wine bottles on the table in front of you and your kid sitting right next to you, I’ve seen those pictures.
The mediator’s going to see those pictures, and the judge is going to see those pictures. So, get off of social media, and tell your friends and family don’t post anything that is not going to be helpful to you.
I think it goes to the point that the judge, ultimately, is a human being. So that perception actually does play a role in their decisions, believe it or not.
Yes, they’re not computers, as people want to think.
Let’s touch on costs. Can you give us a sense of the typical costs involved for the different process options (litigation vs. mediation vs. collaborative) as it relates to the child custody piece specifically?
I usually tell people in mediation, all things being equal, just to plan for three 3-hour sessions, or nine hours total, be that with a child specialist, or a legal mediator. And that hourly rate ranges depending on profession, experience, location. It can range from one hundred-fifty, to five, six, or seven hundred dollars. It just depends on who you’ve selected and their profession.
Child specialists tend to be less expensive than the lawyers, in terms of the hourly rate, and they happen to be the experts, so you’re going to have a more efficient process.
But I’ve had some instances where parents are much more motivated and they’re much more willing to work on themselves and take the information from that professional and adopt it.
We’ve had some cases that have resolved in three hours. We’ve had some that have gone on two years.
So, rule of thumb, the more heightened the emotions, the higher the conflict, the more complex the issues, you’ve got a special needs child, or you’ve got something else going on, the more expensive it’s going to be.
Another big factor that drives up costs is the level of communication. The more challenging or strained the communication, the more expensive, in terms of time, money, and stress, your process will be.
And those are in any type of the divorce process, whether that be litigation, mediation, or collaboration?
Yes. We call them cost-inflators. I actually give my clients a list of cost inflators. Here are some cost-inflators: “When you are under stress or you feel attacked, where do you struggle?” I’m not going to say, “What are your deficiencies?” I’m going to say, “Where do you struggle when you are most stressed?” “Saying ‘yes’ when I really mean ‘no’”; “Coming to meetings unprepared;” “Writing long-winded emails;” “Speaking for the other person”, etc.
A lot of people will say, “Oh, this is a high-conflict personality.” Okay, is it diagnosed? Is it situational? I mean, if somebody just flat out rear-ends you super hard, you’re going to be a high-conflict personality, most likely, let alone somebody saying, “You’re a lousy parent because … And we’re going to make sure that the court acknowledges that you’re a lousy parent.”
It’s not you’re a lousy parent. You’re in a trauma.
Divorce is a trauma. Custody battles are traumas for everyone, including the kids.
So just remember, communication, emotions, complexity of the issues, it’s going to drive up the costs if you don’t manage it productively; work with the right professionals.
What happens after child custody mediation in an out-of-court process? It sounds like the objective is that the parents are now armed with the tools to be able to mediate (resolve) their own disputes and work through issues.
At least one of them is.
Which is really all it takes to get to an agreement?
What happens after child custody mediation in the court process? What does that look like?
It really depends on the personalities of the parents. If you’re really working with someone who is a high-conflict personality, they’re going to keep coming back to court.
When you say “high-conflict,” are you referring to personality disorders, such as narcissism or borderline?
Yes. It may be either diagnosed or undiagnosed, whether they’re bi-polar or whether there’s more extreme than normal borderline personality issues.
We all have some level of personality challenges, narcissism being a really common one. It’s just that with child-related traumas, some people have more difficulties than others.
In those cases you can expect that person, if they’re being told they have to do something, they’re going to push against that. It’s not unlike the personality of a rebellious teenager, so when they’re told, “You’re not allowed to do such and such,” or “You have to do,” guess what they’ll do? The opposite.
It is that kind of personality, even if it’s just situational because of the circumstances they’re going through.
A high-conflict personality type will most likely say, “Okay, well, I don’t like these orders, so I want to get another hearing. And as a result of me now requesting something on the child, we have to go to custody mediation again, do this all over.” It’s a never-ending cycle.
I actually had a gentleman interview me years ago for possible mediation and he ended up saying, “Well, you know what? We’ve got a hearing coming up next week. I’m going to see how that goes.”
He didn’t get the orders he wanted. He got supervised visitation – and he came back to my office a day or two after the orders were handed down, and he says, “I need you to undo this. I need you to fix it.”
I said, “Well, what’s changed since the orders were issued?”
He says, “What do you mean?”
I said, “Well, in order for a judge to change their own orders, circumstances have to have changed. Do you now have a home that is suitable for your child during your visitation time? Something has to have changed that would warrant a change in the orders.”
“Well, nothing’s changed. I just don’t like the orders.”
Regret is not a factor…
Exactly! Just because you don’t like the court’s orders…it’s not like the judge is going to say, ‘Oh, you don’t like my first orders? Let me change those for you.'” It just doesn’t work that way.
And he says, “Well, the judge hardly let me talk.”
I replied, “Well, I wasn’t there. I don’t know what you were trying to say. I don’t know what the situation was. Ignorance of the law is not an excuse and you not liking the orders is not a reason to change them. I mean, you’re kind of out of luck there.”