Child Custody Mediation

When parents are unable to agree on a parenting plan for child custody and visitation, the court requires the parties to attend mediation. This is true whether the parties are establishing an initial parenting plan following separation, or modifying a current custody plan.

The mediator is a mental health professional trained to assist the parties negotiate an agreement for custody, visitation, and other custody-related issues. If the parties are able to reach a complete agreement, the mediator will document the agreement so the parties can have the agreement adopted as an order of court. If the parties are unable to reach an agreement following mediation, the mediator will submit a report to the court with copies to the parties making a recommendation as to the child's best interests.

During the mediation process, the mediator may interview the children, other parties joined to the case, and other individuals who have unique information relating to the parties or their children - such as teachers, counselors, and day care providers.  However, the mediator's contact with third parties is usually at the discretion of the mediator given the parties' particular circumstances.

There are a few different ways to initiate the mediation process. If one party files an Order to Show Cause for custody or visitation, or requesting a modification of a current custody plan, the matter will be automatically referred for mediation at the Office of Family Court Services. Alternatively, either party can file a Petition for Mediation directly with the Office of Family Court Services without setting a court date. Finally, either party may file a Petition for Private Mediation with the court requesting the court order the parties to participate in private mediation with one of the private mediators on the court-approved Private Mediation Panel.

If you are considering mediation to resolve a dispute regarding child custody in Sacramento County, I recommend visiting the Family Court Services web site for additional information regarding the process and what to expect.

Chil Custody

When discussing child custody, it is necessary to differentiate between “legal custody” and “physical custody”.  Legal custody refers to the right and responsibility to make decisions regarding the health, education and welfare of a child, but does not reflect where the child resides.  Physical custody generally addresses where the child lives and how much time the other parent has visitation. 

When discussing legal custody, the court can order "joint legal custody" or “sole legal custody”. Joint legal custody is the most common and refers to custodial situations in which both parents share the right and responsibility to make decisions regarding the child's health, education, and welfare. The parties must consult one another regarding any significant decision regarding the child. In joint legal custody situations, one party cannot make a decision regarding the child if the opposing party disagrees.  If they cannot agree, they must resolve the disagreement through the courts or with the assistance of a mediator. Conversely, if one party has “sole legal custody”, that party can make such decisions on behalf of the child even though the other party disagrees. 

With physical custody, courts use the terms joint physical custody, sole physical custody and, more recently, shared physical custody. Joint physical custody simply means both parties will have significant, although not necessarily equal, parenting time. Sole physical custody means the child will reside primarily with one parent, subject to the other parent’s visitation rights. The distinction is not always clear. 

One important result of a sole physical custody order is that courts have held a parent with sole physical custody has the presumptive right to change the child’s residence without the permission of the other parent. This right is subject to the court’s ability to stop a parent from changing a child’s residence when doing so would prejudice the rights or welfare of the child, or where it would adversely affect the other parent’s ability to maintain contact with the child.  There is significant case law on the issue, and these situations are referred to as “move-away” cases.  The determining factor is not just the term used to describe the physical custody arrangement, but also the actual time spent with each parent and other relevant issues.

Finally, in conjunction with physical custody courts also use the terms “custodial parent” and “non-custodial parent”. But these designations also do not, in and of themselves, define the parties rights. Rather, they have become terms of art in family law without conferring or denying the parties’ rights with respect to the child.  

Dissolution of Marriage vs. Legal Separation

Many individuals in an initial consultation ask what the difference is between a divorce and a legal separation. My short answer is when completed a legal separation can accomplish the same objectives as a divorce - orders for child custody and visitation, child support, spousal support, and division of assets and obligations - but in the end the parties are still married. So why, they ask, would anyone want a legal separation? There are several circumstances in which the parties don't want to divorce for financial, personal, or religious reasons but want the benefit of a court order or judgment that declares them separated while addressing the same issues as a divorce.                                                         

In a typical marriage, one spouse has the other spouse covered on their medical insurance, perhaps through their employment at a discounted rate. Upon entry of a judgment of dissolution, the non-employee spouse must be dropped from the now ex-spouse's health policy because they are no longer related. This isn't a family law rule, and cannot be negotiated in a divorce. However, with a legal separation the non-employee spouse might remain on the employee spouse's health plan following judgment. This can be very important for a spouse with a pre-existing condition that might not otherwise be able to obtain health insurance on their own.

If a couple have been married for less than 10 years, they may wish to separate and divide the marital estate but delay a divorce until after ten years has passed in order for one spouse to take advantage of certain Social Security benefits. After 10 years of marriage, a spouse can collect social security benefits on a former spouse's Social Security record under certain circumstances. This may be important for a spouse who has stayed at home to raise children and has not paid into their own Social Security benefits.

If you are a military spouse, you may wish to remain married for 10 years to take advantage of benefits afforded by the Uniformed Services Former Spouse Protection Act.

If religious beliefs conflict with the concept of divorce, a legal separation allows spouses to live separately while maintaining their marital status for religious reasons.

Finally, legal separation allows the parties time to reflect on whether a divorce is what they really want. If they ultimately decide divorce is what they want, the proceeding can be amended to a divorce with existing orders remaining in place.

 There is one other situation not uncommon in California in which the parties might at least initially file for legal separation rather than a divorce. For the California courts to have jurisdiction, at least one party must have been a resident of the state for at least six months immediately preceding the filing of the Petition. If a married person has been in the state for less than the required six month period, they might still file a Petition for legal separation and later amend their Petition to request a dissolution of marriage. It is only necessary they reside in California at the time the proceeding is commenced.

Legal separation may be a valuable procedure for some circumstances, even where it is not possible to save the marriage. A consultation with an experienced family law attorney can assist in determining what is best for you.