How Can Mediation Improve Outcomes in Child Custody Cases?

What Types of Child Custody Exist in California?

Before examining how mediation can impact child custody cases in California, it’s valuable to understand what types of child custody are legally recognized in the state. Often, people think there is only one type of custody, but in fact, there are two, and each has subcategories.

Physical Custody

Physical Custody (also called parenting time) is what most people think of when they hear the term “child custody.” This refers to where the child lives and with which parent. 

Child custody comes in two forms in California.

• Joint custody. This means the parents share physical custody of the child. It’s not necessarily 50/50, which may be impractical for various reasons. However, each parent receives a set amount of time to have the child in their home (or spend time in the child’s home if the parents decide that they’ll be the ones to move in and out rather than having the child move between homes). The courts prefer to grant this whenever possible because they believe it’s vital to the child to have both parents involved in their lives. 
• Sole custody. This means the child lives full-time with one parent. The other parent may have visitation rights, but the child doesn’t live with them. This may be voluntary, or the court may order it if there are compelling reasons (the child was the victim of child abuse by one parent, for example.)

Legal Custody

Legal custody involves all the critical decisions that need to be made when raising a child. That can include education, healthcare, religious upbringing (if applicable), extracurricular activities, summer camps, traveling, etc. 

• Joint custody. Joint legal custody means both parents have an equal say in making those significant decisions. They must agree on the central issues or be willing to compromise. This doesn’t involve small day-to-day decisions, such as whether the child can play at a friend’s house after school.
• Sole custody. One parent is assigned complete rights to make all significant decisions regarding the child’s upbringing. The other parent has no say. 

Because both types of custody are tremendously important, it’s unsurprising that divorcing parents can reach an impasse when trying to finalize these decisions. That’s where mediation comes in. California requires couples who have reached an impasse regarding child custody to enter mediation to try and resolve it. 

What Is Mediation?

Mediation is a form of Alternative Dispute Resolution (ADR) and involves bringing in a third party who doesn’t represent either parent but remains neutral. Their job is to listen carefully to what each parent wants and why and try to help them find common ground that so far has eluded them. This process usually begins with each parent and their attorney in separate rooms, and the mediator goes back and forth between them. They may be able to offer suggestions and solutions that haven’t previously been thought of or discussed.

The mediator does not make final decisions. In successful mediation, the couple comes to final decisions in a collaborative manner. The mediator then spells out the agreement in a document for the judge, who can legally finalize it.

How Can Mediation Improve Outcomes in Child Custody Cases in California?

There are many reasons California courts require mediation when child custody negotiations break down. One of the primary reasons is it gives each parent some breathing room. The process of mediation is different from court hearings in that it tends to be a calmer, less stressful event, mainly because of the third party running interference.

It also helps couples focus on the issue at hand–child support–and not on any of the other issues the couple faces in terms of dissolving the marriage. It can be easy to have negotiations devolve into unrelated aggravations, but a mediator will gently keep the proceedings on their intended focus.

What Does it Take to Have a Successful Child Custody Mediation?

Mediation isn’t without any potential pitfalls. Prepare to do the following to increase the chance of successfully coming to terms with child custody matters with mediation.

• Best interests of the child. The court looks at this first and foremost, so when laying out what each parent wants, they must look at hard at how that benefits the child versus the parent. 
• Open mind. It’s crucial to have an open mind and be willing to consider other viewpoints. The mediator may ask you to listen to ideas you don’t want to hear at first, but take a deep breath and hear them. 
• Willingness to compromise. It’s the rare child custody agreement that doesn’t involve considerable give-and-take from both parents. 

What Should I Do if My Spouse and I Want to Divorce and I Are Having Difficulty Coming to an Agreement on Child Custody?

Call Hepner & Pagan as soon as possible at 408-688-9153 to request an intake appointment. Divorce itself can be extremely stressful, but when children and their custody are involved, the stakes can be even higher–and so can emotions. We understand how important it is for you to have a say and remain involved in your child’s life. We also understand how stressed children can become when their parents are stressed, and we can offer mediation services to help reduce the stress and collaborate to arrive at an agreement that both parents can accept and work with.