FAMILY COURT MEDIATION SERVICES
All contested issues of custody and visitation must be submitted
to mediation before the court hearing. Prior to the filing of an
order to show cause or notice of motion, the parties are ordered
to call to arrange for an appointment with the Family Court Mediation
Services.
PURPOSE OF MEDIATION
(Family Code Section 3161)
The purposes of a mediation proceeding are as follows:
(a) To reduce acrimony that may exist between the parties..
(b) To develop an agreement assuring the child close and
continuing contact with both parents that is in the best interest
of the child, consistent with the health and safety of the child.
(c) To effect a settlement of the issue of visitation rights of
all parties that is in the best interest of the child.
PRE-MEDIATION ORIENTATION
Pre-Mediation Orientation will be offered every Tuesday at 1:00 p.m.
DOMESTIC VIOLENCE
(Family Code Section 3181)
(a) In a proceeding in which mediation is required pursuant to
this chapter, where there has been a history of domestic violence
between the parties or where a protective order as defined in
Section 6218 is in effect, at the request of the party alleging
domestic violence in a written declaration under penalty of
perjury or protected by the order, the mediator appointed pursuant
to this chapter shall meet with the parties separately and at
separate times.
(b) California Rule of Court 5.230 establishes a protocol for
cases involving domestic violence. A subsection of the Rule
states, “In domestic violence cases in which neither party has
requested separate sessions at separate times, Family Court
Services staff must confer with the parties separately and
privately to determine whether joint or separate sessions are
appropriate.”
A person, who falls within the provisions of Family Code Section
3181, is entitled to have a support person with them during
mediation and orientation. The support person is not present as a
legal advisor. The support person is present to assist the [alleged]
victim of domestic violence in feeling more confident that he or she
will not be emotionally injured or threatened by the other party.
The presence of a support person does not waive the confidentiality
of the mediation process and is bound by the confidentiality of the
mediation proceeding. The support person may be in the session even
if the other party is not present.
A mediator may exclude a support person from a session pursuant
to Family Code Section 3182 if:
(1) The support person attempts to participate in the session.
(2) The support person acts as an advocate for the [alleged]
victim in a session.
(3) The presence or actions of the support person disrupts the
mediation process.
(Family Code Section 3044) Presumption that Custody of Child to
Parent Who Perpetrated Domestic Violence Against Other Party is Not
in the Best Interest of the Child.
(a) Upon a finding by the court that a party seeking custody of a
child has perpetrated domestic violence against the other party
seeking custody of the child or against the child or the child’s
siblings within the previous five years, there is a rebuttable
presumption that an award of sole or joint physical or legal custody
of a child to a person who has perpetrated domestic violence is
detrimental to the best interest of the child, pursuant to Section
3011. This presumption may only be rebutted by a preponderance of
the evidence.
(b) In determining whether the presumption set forth in subdivision
(a) has been overcome, the court shall consider all of the following
factors.
(1) Whether the perpetrator of domestic violence has demonstrated
that giving sole or joint physical or legal custody of a child to
the perpetrator is in the best interest of the child. In determining
the best interest of the child, the preference for frequent and
continuing contact with both parents, as set forth in subdivision
(b) of Section 3020, or with the noncustodial parent, as set forth
in paragraph (1) of subdivision (a) of Section 3040 may not be used
to rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer’s
treatment program that meets the criteria outlined in subdivision (
c) of Section 1203.097 of Penal Code.
(3) Whether the perpetrator has successfully completed a program of
alcohol or drug abuse counseling if the court determines the
counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting
class if the court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether
he or she has complied with the terms and conditions of probation or
parole.
(6) Whether the perpetrator is restrained by a protective order or
restraining order, and whether he or she has complied with its terms
and conditions.
(7) Whether the perpetrator of domestic violence has committed any
further acts of domestic violence.
(c) For purposes of this section, a person has “perpetrated domestic
violence” when he or she is found by the court to have intentionally
or recklessly caused or attempted to cause bodily injury, or sexual
assault, or to have placed a person in reasonable apprehension of
imminent serious bodily injury to that person or to another, or to
have engaged in any behavior involving, but not limited to,
threatening, striking, harassing, destroying personal property or
disturbing the peace of another, for which a court may issue an ex
parte order pursuant to Section 6320 to protect the other party
seeking custody of the child or to protect the child and the child’s
siblings.
(d) (1) For purposes of this section, the requirement of a finding
by the court shall be satisfied by, among other things, and not
limited to, evidence that a party seeking custody has been convicted
within the previous five years, after a trial or a plea of guilty or
no contest, of any crime against the other party that comes within
the definition of domestic violence contained in Section 6211 and of
abuse contained in Section 6203, including, but not limited to, a
crime described in subdivision (e) of Section 243, or Section 262,
262, 273.5, 422 or 646.9 of the Penal Code.
(2) The requirement of a finding by the court shall also be
satisfied if any court, whether that court hears or has heard the
child custody proceeding or not, has made a finding pursuant to
subdivision (a) based on conduct occurring within the previous five
years.
(e) When a court makes a finding that a party has perpetrated
domestic violence, the court may not base its findings solely on
conclusions reached by a child custody evaluator or relevant,
admissible evidence submitted by the parties.
(f) In any custody or restraining order proceeding in which a party
has alleged that the other party has perpetrated domestic violence
in accordance with the terms of this section, the court shall inform
the parties of the existence of this section and shall give them a
copy of this section prior to any custody mediation in the case.
{Added 1999 ch. 445; Amended 2003 ch. 243.}
MINORS IN MEDIATION (Family Code Section 3180)
In a mediation proceeding, the mediator has
the duty to assess the needs and interests of the child involved in
the controversy, and is entitled to interview the child where the
mediator considers the interview appropriate or necessary
(pre-school age children, under the age of five, generally will not
be interviewed by the mediator) This code section is only
activated in court ordered cases.
However, do not bring children to your mediation appointment.
Children only attend mediation by Court Order or at the request of
the mediator. Children are not interviewed or included in voluntary
mediation. Please be reminded that infants do not sleep during
mediation and can create a distraction. The Courthouse does
not provide childcare or supervision for children during your
mediation appointment and it is not acceptable to leave children
unattended in the hallway. It is important for parents to
provide childcare during the mediation appointment that allows you
to be attentive and to participate in your mediation appointment.
OTHER PARTIES
IN MEDIATION
Other parties who are significant to the minors may be included
in court ordered mediation at the discretion of the mediator.
These parties may include, but are not limited to, grandparents,
stepparents, adult siblings, teachers, therapists, evaluators, or
other significant person in the child’s life. Mediation sessions
always begin with the petitioner and respondent, unless otherwise
directed by the Court
ATTORNEYS IN
MEDIATION
Attorneys
may participate in the mediation session if both parents agree.
Please review your case thoroughly with your attorney prior to the
start of mediation and then come to mediation prepared to sign an
agreement. Do not agree to anything that, in your opinion, is not in
the best interest of your children. Your attorney will have an
opportunity to review your agreement prior to the Judge making it an
order of the court. You cannot hold up the mediation session while
your attorney reviews your agreement expecting the mediator and the
other parent to wait. Attorneys are advised not to instruct their
clients not to sign an agreement until they have reviewed it. Their
review takes place prior to the Judge signing the agreement.
At the request of counsel, an "Attorney Conference" may
be held prior to or at the conclusion of mediation to review the
recommendation. If only one side has an attorney, the
self-represented person is included in the conference. An
attorney may mediate for their client if the client is physically
unable to attend. This requires the consent of the other
parent, who is entitled to have his or her own attorney present.
VOLUNTARY MEDIATION
POLICY
Parents who mutually agree to a mediation session to aid in the
resolution of parenting issues shall be allowed to schedule
mediation. These sessions are limited in time, scope, and generally
do not exceed 1.5 hours. Voluntary mediation is limited to 1
appointment in a 12-month period. Voluntary appointments resulting
in an agreement for a custody evaluation, drug assessment/testing or
counseling will receive one follow up appointment to discuss
results.
SCHEDULING OF MEDIATION APPOINTMENTS
Appointment Procedure:
- Parent A calls for a mediation appointment.
- They are given a tentative appointment date and told that the appointment will not be confirmed until Parent B has called in to confirm.
- Parent B has until 3:00 PM of the next workday to confirm the appointment.
- Parent A may call in after 3:00 PM to check if Parent B has confirmed.
- If Parent B has not confirmed, there is no appointment.
Parents may try again to set a voluntary mediation appointment at another time.
There is no fee for voluntary mediation.
Proper Cancellation:
48 hours notice to Mediation Secretary
Nevada City office, (530) 265-1733, Truckee Branch office (530)
582-7835 or in case of an emergency, as soon as possible.
Suspension:
If after having a confirmed appointment there
is a no show by either parent and no call to cancel
the appointment, voluntary mediation privileges will be suspended.
Reinstatement:
Parents will be reinstated into voluntary
mediation after they have been back to Court.
Mediators are assigned by availability,
not preference. You will not be assigned to a particular
mediator, but to a mediation process. In mandatory mediation
cases, the mediator may choose to stay with a case until certain
issues are resolved. The case would then return to
availability status.
Mediation appointments are set for one hour. However, cases
coming directly out of Court may delay the start of your session.
For the purpose of scheduling, the parties should plan on more than
one hour and make schedule arrangements for employment, childcare
schedules, etc. accordingly.
TELEPHONE
MEDIATION
In some Court-ordered cases, mediations may be conducted with one
party in the office and the other party on the telephone. This
may be done when, because of geographical distance, one party claims
hardship and cannot reasonably appear. Telephonic mediation is
limited to mandatory mediation cases. There is no telephonic
mediation in voluntary mediation cases.
MEDIATION
AGREEMENTS
When
parties reach a mediated agreement in cases referred directly out of
Court the parties and/or their attorneys will be given a copy of the
agreement prior to submitting the agreement to the Family Court
Judge. When the Judge signs the mediated agreement it is file
stamped by the Clerk and each party and their attorney is provided a
copy of the mediated agreement/court order.
In mandatory
mediation cases that are not returning to Court the same day,
attorneys will be faxed a copy of the agreement prior to the Judge
signing the agreement, if requested.
In voluntary mediation, it is the
responsibility of the party to provide the attorney with a copy of
the agreement.
After
the Judge signs an agreement reached in voluntary mediation, you
will receive a copy in the mail.
ENFORCEMENT
The mediator is not responsible for the enforcement of mediated
agreements. Agreements become Court Orders. Mediators do
not give legal advice. Contact an attorney or the court clerk
on enforcement procedure.
MANDATORY
MEDIATION
Cases referred directly out of Court or Court-ordered are called
mandatory mediations. If an agreement is not reached in
mandatory mediation the Court expects the mediator to make a
recommendation.
RECOMMENDATIONS
(Family Code Section 3183)
Nevada County is a Recommending County.
When the parties are unable to reach an agreement in mandatory
mediation the mediator shall prepare a written recommendation under
the heading Status Report. The Status Report will be placed in
a confidential section of the Court file for review by the bench.
Copies of the Status Report will be available to the parties and
attorneys. The Judge may or may not act on the recommendation
in the Status Report. Only the decisions made by the Judge
become part of the Court Order.
Recommending mediation and child custody
evaluation are distinct practices. Experts in recommending mediation
work to assist the parties in reaching mutually agreed-on
resolutions. By contrast, the process of child custody evaluation
establishes a third party as the expert who will investigate,
assess, evaluate, report, and make recommendations. Recommending
mediation is distinct from evaluation in two ways. First, the
primary objective of recommending mediation is to facilitate the
parties' own decision-making. Second, the scope of the
recommending aspect of recommending mediation is more limited and
less extensive than most full or partial child custody evaluations.
The primary purpose of recommending mediation
is to help the parties resolve their issues. The emphasis is on mediation with recommendations. During mediation, the mediator
will focus on facilitating positive interaction and communication
between the parties.
For example, during mediation, if the parties appear to be at an
impasse, the mediator might choose to first offer suggestions to the
parties to see if this can assist their decision-making. The
mediator's contribution to the process will correspond to the
parties' needs, requests, circumstances, and stage of mediation.
EVALUATION
REFERRALS
In
order for parents and the court to gain clarity on the needs and
best interest of the children, parents can agree to, mediators can
recommend or the court can order one or more of the following:
- Partial
Child Custody Evaluation
- Full
Child Custody Evaluation (includes psychological testing)
- Substance
Abuse Assessment
- Anger
Management Assessment
- Mental
Health Status Check
MEDIATION FILES
Mediation files are kept for two years from your last mediation.
DISQUALIFICATION
OF A MEDIATOR
The mediator may
be disqualified by virtue of a pre-existing personal relationship or
a pre-existing professional relationship outside of Family Court.
Previous contact through mediation is not grounds for
disqualification.
In any case,
either the parties or the mediator should air the potential for bias
or the appearance of bias, at the start of the mediation session.
If the mediator identifies a conflict of interest, he or she will
recuse himself or herself from the case.
COMPLAINT
PROCEDURES (California Rules of Court 5.210)
Clients and/or
counsel desiring to register a complaint regarding the mediation
process or an individual mediator, may request a copy of the
official complaint form prepared by the Administrative Office of the
Courts. We appreciate you taking time to inform us of your
complaint regarding the services you received through Family Court
Services. We are committed to responding to your concerns in a
prompt and thorough manner.
Complaints are allowed regarding the process, the facilities, or the
behavior of the mediator. Complaints cannot be related to the
substance or merits of the case. Those issues are reserved for
the Judge. Subsequent to filing the complaint form, parties
may request a Meet and Confer Session.
LIMITATIONS
ON CONFIDENTIALITY
Please be advised that there are certain
limitations on confidentiality regarding the mediation process.
Family Code Section 3177 provides that mediation "shall be held in
private and shall be confidential." This provision of the
law can be modified by Local Rules of Court to allow the Family
Court Mediator to make recommendations to the Court pursuant to
Family Code Section 3183. This section provides that, "the
mediator may, consistent with local Court rules, submit a
recommendation to the Court as to the custody of, or visitation with
the child."
Nevada County Superior Court Rule 5.05(F)(4)
states, "In the absence of an agreement, the mediator shall make a
written recommendation at the request of the parties or the Court,
and may make a written recommendation without such a request
provided, however, if no proceedings are pending, no recommendation
will be made."
If appropriate, the mediator's recommendation
may include a recommendation for a custody investigation.
Also, be advised that all of the Nevada County
Court Mediators are licensed mental health professionals and, as
such, are mandated reporters of alleged child abuse. Alleged child
abuse reports are made to Child Protective Services. There is also a
duty to warn if a threat is made (during mediation) against a
specific person. The duty to warn includes contacting the
person against whom a threat has been made and the appropriate law
enforcement agency.
DRUG
TESTING (Family Code Section 3041.5)
Family Code Section 3041.5 states, in essence, that the Court may
order drug testing in a custody/visitation case if there is an
allegation that one or both parents put the child (ren) at a health
or safety risk due to “…habitual, frequent, or continuous
illegal use of controlled substances or the habitual or continuous
use of alcohol…”
COMMUNICATION
WITH THE MEDIATOR
Within the California Rules of Court, there is
a prohibition against ex parte communication. Specifically,
"A party or an attorney for a party shall not initiate contact
with a court-appointed mediator, orally or in writing, to discuss
the merits of a case without notice to the other party. The
mediator may determine the nature and extent of the contact he or
she will make with any party." With the above in mind, please do not write or contact us by phone.
This includes your family and other support systems. Your
letters will be returned by mail or at your next appointment.
We will respond to specific questions regarding your parenting plan.
Please include self-addressed stamped envelopes for you and the
other parent. The other parent will receive a copy of your
question and our response.
Also, please be advised that it is the policy of Family Court
Services (FCS) that mediators not accept mediation clients or their
children into their private practice. All of the mediators are
licensed mental health professionals. Most of the mediators also
have a private therapy practice. Please do not ask the mediator to
become your private therapist. There are ethical considerations
involved as well as the potential appearance to the public that
mediators are filling their private practice from a position of
being paid as mediators from public funds.
CODE OF ETHICS
All mediators shall abide by the "Code of Ethics" California
Courts.
CONTINUING
EDUCATION REQUIREMENTS
All Family Court Services (FCS) mediators shall meet all
statewide continuing education requirements for mediators and child
custody evaluators. All FCS mediators are licensed mental
health professionals and shall meet all continuing education
required by their licensing board.
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