Research indicates that children are often a stabilizing influence on a marriage. Indeed, staying together for the sake of the children is a long-standing and widely accepted practice in our culture. But once the decision to divorce is made, child custody is often the most contentious, most emotionally wrenching aspect of the divorce.
How does a divorce and child custody mediator and attorney in California help mitigate the trauma for divorcing parents and their children? Amy Laughlin, Founder and Partner at Laughlin Legal Divorce and Family Law Group in Silicon Valley has been handling these cases for quite some time, often for very high profile clients. Here are excerpts from a recent conversation with Ms. Laughlin on the subject.
Q. Why is child custody mediation important?
AMY LAUGHLIN Over the years, I’ve identified two primary reasons that child custody mediation is not only important, it’s mandatory in California Number 1, it’s an opportunity for the parents to jointly negotiate and decide what’s best for their children rather than turning it over to the court to decide. And number 2, it’s also an opportunity to resolve their custody dispute without the cost of going to court. And by cost, I’m looking at it holistically – mediation requires a fraction of the time and money a court case takes, and it results in a fraction of the trauma the entire family is exposed to when a case goes to court. Mediation is a construct where parents can resolve their problems together in a more collaborative environment without intervention.
Q. Why isn’t mediation optional? Can you explain why courts require child custody mediation?
AMY LAUGHLIN Sure, but let me clarify something. Even though statutorily the parties must mediate their child custody dispute before the court can make an order, there are exceptions in cases that involve child abuse, domestic violence, neglect, sometimes addiction, certain mental illnesses, anything that leads to an unsafe environment for the children or for the other parent. Those have to be proven; they can’t just be alleged.
Another exception is couples who can come to an agreement on their own without court intervention; they do not have to do child custody mediation. Occasionally, I’ll meet with a couple to mediate their case and discover that they’ve already reached an agreement. That agreement is then filed with the court and the court will enter the agreement as an order.
One reason why courts require child custody mediation is that the state of California takes child protection seriously. California courts recognize that decisions made in divorce, child custody and child support cases can have a profound and lasting influence on the health and well being of the child. And it’s the court’s responsibility to make rulings based on the best interest of the child. That’s the state’s standard.
The ideal way to lay a foundation for delivering on that standard is to get both parents to contribute to the terms of the resolution. And that’s far more likely to happen in mediation than in court. The court should not be making orders about you and your family and your children unless it’s absolutely necessary because the court doesn’t know you or your family. So California tries to encourage agreements that couples arrive at by themselves.
In my experience, agreements arrived at through mediation are more likely to be successful in the long run. There’s psychology around those successes. When both of you contribute to determine your future, there’s joint buy-in. Whereas when the court decides for you and tells you to do it the court’s way, that doesn’t feel good to anyone. And it’s entirely possible that you could get an order that both parties hate. It happens.
Q. Are there certain benefits of mediation in custody cases?
AMY LAUGHLIN I’ve addressed this in a previous question, but I’d like to go back to the issue of buy-in from both parents. Understand that during child custody mediation, both parents are asked what they think is the best resolution for the children. And who knows the children better than their parents? No one. I think child custody mediation is the best shot a family has at arriving at the best interest of the child with very few exceptions.
Q. Does mediation before a child custody trial really work? How often?
AMY LAUGHLIN Oh it definitely works. Results vary from county to county but definitely more than half of all cases in mediation succeed. People are often surprised to hear that. In my practice, I’ve only had one mediation for child custody that did not succeed where one spouse became abusive of the other spouse and we could not continue.
When mediation is successful, there’s also a benefit to the state in that it takes those cases out of the court system, a court system that’s still horribly backlogged. When mediation fails, it can easily take up to four or more months to get a court date. So it saves clients money and also saves the state money.
Q. What can I do to make it more likely that my child custody mediation will be successful?
AMY LAUGHLIN Value the contributions of the other parent, remember that there’s probably never going to be anyone else that loves your children as much as you do.
And remember that your children are made up of both of you, equally, and they need both parents and need them to get along and co-parent to create a healthy environment. When you disparage another parent, you’re really disparaging that child because they’re part of that person and they identify very strongly. When kids are very young, they don’t even realize they’re separate human beings! They don’t see where they end and you begin.
In the words of author and relationship expert Tracie Miles, “Try to leave a marriage the way you came into it, with kindness and grace.”
Q. What is a court-ordered child custody mediation? How is that different from private child custody dispute mediation?
AMY LAUGHLIN There are 3 paths to child custody mediation.
- The parents do it themselves and arrive at a custody agreement without a mediator and submit that to the court.
- The parents choose private child custody mediation where they hire their own private child custody mediator to help them arrive at an agreement and submit that to the court.
- The parents choose public court-ordered child custody mediation where they go to family court services and are appointed a mediator free of charge. This third option is what most parents choose. But there’s a wait involved because a request for order has to be filed first before a mediator is appointed. Take note that you can still choose to do private mediation after someone files a request.
Q. What is the child custody mediation process?
AMY LAUGHLIN When parents cannot agree on custody terms, a Request for Order for custody is filed by either parent. The court will then refer you to family court services, and family court services will reach out to both parents and set up a time for mediation. Mediation lasts 2 to 3 hours. In many counties it’s done either in person or on Zoom, and the mediator listens to the positions of both sides and tries to get the parties to agree to as many things as they can.
If the parties cannot agree, in some counties, like San Mateo, the mediator will make a recommendation for orders to the court, and the judge makes the ultimate decision. In other counties, the mediator does not make recommendations to the court or the judge.
Parents can expect the process to take as little as a few hours or as long as more than a month. More complex cases involving a history of issues like domestic violence, neglect, relocation of one of the parents or special health considerations are more likely to take longer.
My method in mediation cases is to focus immediately on resolution. It’s so much more efficient financially. Think of it: you’ve generally got two people who want to resolve it without litigation and they’re right there in the room with you. This is fertile ground, you’re already 90% there! I’ll have each person come with their plan for resolution and then we review them side by side and immediately see where we need to focus. And I usually can resolve it within 3 sessions.
I think this is where many mediators get hung up. They’re following some cookie cutter approach that tells them otherwise instead of focusing on resolution right from the get go.
Q. Can you tell me what to expect in child custody mediation? How can I prepare for it?
AMY LAUGHLIN The decisions will all be focused around timeshare, transitions and holidays, but you should rely on your attorney to prepare you. If they don’t offer to prepare you, ask them to. I can’t tell you how many people go into family court services and their attorneys have not prepared them. In complex cases we bring in professionals to prepare our clients. They explain how it works and how to put your best foot forward.
It’s important that you go to mediation having thought about the issues and with a clear plan of what you think is best for your children, what serves their best interests and why. You make other requests that relate to the child’s best interest like therapy if you think that’s important.
Q. What should I look for in a mediation lawyer in deciding who to choose to help me with my child custody mediation?
AMY LAUGHLIN When you’re looking for a mediator you want to make sure they’ve successfully completed a reputable mediation training course and are certified in mediation. I personally think that a mediator who’s also a family lawyer is a good choice because they understand the legal parameters of every issue. It’s also good if they’ve demonstrated a deeper interest in mediation by seeking out additional training that can raise the likelihood of their clients’ success. For instance, the negotiation mastery course I took through Harvard added a powerful tool to my practice. And also someone with lots of experience handling child custody cases specifically, even highly contested ones.
Beyond the qualifications, you’re looking for a personality fit, someone who you both feel comfortable with, someone you both feel you can trust, who seems even handed with you both and gives you the sense they can guide you to a resolution.
Q. Can you share a story about a typical child custody mediation case?
AMY LAUGHLIN So often, one parent sets out to discredit and disqualify the other parent from 50/50 joint custody. It happens often. I was representing a dad, and he had always been a hands-on parent. Involved in every aspect of his kids’ life. And the mom refused to agree to 50/50 custody simply because she was the mother and believed that her parenting style was best for the kids. So she only wanted to give him every other weekend. Fair warning: this type of argument is a nonstarter; they fall flat in court.
The parent who’s the stay at home parent sometimes believes that because they’ve been the primary parent, the other person should not be allowed to have equal custody. In other words, simply because they were the working parent and they weren’t the one who did the meals or nighttime baths, they were not qualified for 50/50 custody.
Well the court is going to say, we’re confident dad is going to figure it out. He can learn how to do a bath and make a sandwich. And that’s what happened. The father was awarded 50% joint custody. And btw, parents who think they know it all and the other parent isn’t worthy, if they share that sentiment with the children, that can turn into some form of parental rejection which is when one parent tries to damage the relationship between the children and the other parent by talking trash about them, complaining about them, portraying them as less capable or loving. And in California, where the prevailing standard is that it’s best for children to have both parents in their lives, that kind of behavior can affect the child custody order in a way that would surprise the know-it-all parent.
If you’re not sure who to talk to about your child custody dispute mediation, Laughlin Legal can help.
Laughlin Legal Divorce and Family Law Group is a collection of some of the most skilled child custody mediation attorneys in Silicon Valley. Laughlin Legal is trusted throughout California for their ability to understand and secure their clients’ needs and values, and help divorcing parties achieve a better outcome for a better tomorrow.
Call us at 650.343.3486 to schedule your first consultation. If you’d prefer, you can email us to set up your appointment. If we miss your call, we will respond promptly and call you back as soon as possible.
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