You have been noticed to appear at Family Court Services (“FCS”) mediation. A million questions are probably going through your mind. While this article may not answer all million, it will hopefully provide enough information to ease some of your concerns.

When separating or divorcing parents cannot come to an agreement on a custody and/or visitation plan, they are required to participate in FCS mediation (although parties may stipulate to use a private child custody counselor at the parties’ own expense, this article will focus solely on FCS mediation).

Purpose

As stated in the FCS Child Custody Recommending Counseling Information Sheet, FCS mediation “is a process in which parties are given the opportunity to work together, with the assistance of an experienced [FCS] counselor, towards a goal of reaching an agreement regarding a parenting plan for the child(ren). The [FCS mediation] is an opportunity for parties to discuss custody and visitation and make their own decisions about what is in the best interest of the child(ren). The parenting plan that is developed will detail when the children are to be with each party and will specify other parental responsibilities. Information shared by the parents in [mediation] is not confidential to the court. The counselor will notify the court of areas of agreement. If no agreement is reached, the counselor will make a written recommendation to the court as to what is believed to be in the best interest of the child(ren). The recommendation will provided to the parties prior to the court hearing. If you disagree with the counselor’s recommendation, during your court hearing, you or your attorney will have the opportunity to tell the judicial officer your position regarding a child sharing plan. Only a judicial officer can make a court order for child custody or visitation.”

Essentially, the purpose of FCS is to assist families in the settlement of disagreements involving the welfare of children where there is an action in Family Court, try to ensure the children get frequent and continuing contact with both parents after the dissolution or marriage or end of a relationship, and encourage parents to cooperate and share the rights and responsibilities of parenting during and following a dissolution.

Be advised that, unless ordered by the court, all FCS mediation in San Diego is non-confidential as between the counselor, the court, the parties and their attorneys, but remains confidential as to the public.

What To Expect

You should arrive at FCS at the exact time listed on the Request For Order paperwork. After you check in, you will watch an orientation video before meeting with the mediator. The meeting itself may last anywhere between 1 to 2 hours, sometimes longer, depending on the complexity of the issues and whether an agreement can be reached. The mediator will ask about your home, relationships, and other aspects of your life related to parenting. Your proposal for a visitation schedule and decision-making authority will also be discussed.

Typically, parents meet with the mediator together and no other person is allowed to participate, including attorneys. The following are exceptions:

• Arrangements can be made for a telephone conference if one party is out of the county (in such a case, that party should call the FCS office where the session will take place to arrange for participation by telephone as early as possible).
• If you are being protected by a restraining order against the other parent or if you allege domestic violence has occurred, you may be seen separated without the other parent present at your FCS appointment. Also, if a restraining order for your protection is in effect at the time of the appointment, you may have a support person with you during your FCS session, including a session where you are seen without the other parent (in such a case, you should advise the FCS clerk of these requests when you check-in).

Do not bring the child(ren) with you to the FCS appointment unless ordered to do so by the court. If an interview with the child(ren) is needed, arrangements will made at a later time. If you do not have anyone to watch your child(ren) during the appointment, you may leave your child(ren) attended at the on-site facility for child-care. However, you should call FCS in advance to confirm they will have the child-care facility staffed on the day of your appointment.

If you are able to reach an agreement during the FCS session and both parties are self-represented, the counselor may prepare a written agreement that will be approved and signed by the parties and filed with the court. If either party is represented and the parties reach an agreement, the agreement will be memorialized in a written report that will be forwarded to the court, and the parties and their attorneys.

If you are unable to reach an agreement during the FCS session, the counselor will submit a comprehensive written report to the court that includes, but is not limited to, a custody and visitation recommendation and the reasons for the recommendation.

LIMITATIONS

FCS mediation does not deal with issues related to money, child or spousal support, or property. Further, FCS cannot monitor or enforce court orders.

SANCTIONS

If you do not cancel the FCS appointment and/or fail to appear for the appointment, you may be ordered by the court to pay a monetary sanction of up to $1,500 pursuant to Code Civ Proc. §177.5. Rule of thumb: if you are ordered to appear at FCS, you must appear absent a written stipulation with the other parent that resolves all custody and visitation issues identified in the Request For Order.

If circumstances arise which prevent you from attending on the date and time indicated on the Request For Order, it is imperative to inform FCS as soon as possible. The parties, collectively, may reschedule an FCS session one time by notifying FCS directly of the joint agreement to reschedule no later than 5:00 p.m. on the court business day before the session. All other, or subsequent, requests require a court order. Be careful, however, as you should be prepared to demonstrate good cause for rescheduling the appointment if a court order is required. Otherwise, you may face a monetary sanction.

POINTS TO CONSIDER

You should consider the following points before attending your mediation appointment at FCS:

1. The best interest of the child(ren) are paramount in Family Court. (Family Code 3020). In other words, you or the other party’s displeasure with the other person is not germane to custody and visitation issues unless they are intertwined and related with the best interests of the child(ren).
2. When making a determination of the best interest of the child, the court shall, among any other factors it finds relevant, consider all of the following: 1) the health, safety, and welfare of the child(ren), 2) any history of abuse by one party against any child to whom he or she is related or with whom he or she has had a caretaker relationship, the other parent, or a parent, current spouse, or cohabitant, of the party or a person with whom the party has a dating or engagement relationship, 3) the nature and amount of contact with both parents, and 4) the habitual or continual illegal use of controlled substances, or abuse of prescribed controlled substances by either party. (Family Code 3011). Be prepared to discuss these, and any other relevant factors, when meeting with FCS.
3. Be prepared to discuss your proposal for custody and visitation and why your proposal is in the best interests of the child(ren). Within that discussion, your proposal should include at least the following: legal custody (the rights and responsibilities of parents to make decisions relating to the health, education and welfare of their child(ren); physical custody (how much time the child(ren) spends with each parent, where the child(ren) lives, how day-to-day responsibilities are fulfilled); holiday/school break schedules (with whom the child will stay with during holidays and/or school breaks); exchanges and transportation (how the child(ren) will be exchanged, including the location of such exchanges); communication (how the parties may communicate with one another and how they may communicate with the child(ren) when the child(ren) is with the other party; and safety (how to protect the child(ren) from safety concerns, including but not limited to abstaining from drugs and/or alcohol).
4. Although FCS mediation is designed to assist parties reach an agreement, you are not required to reach an agreement if the circumstances do not permit an agreement that is in the best interests of the child(ren). Accordingly, do not feel pressured into an agreement that you do not believe serves the best interests of the child(ren).

Learn More

To learn more about FCS mediation, you may consider attending a Parent Orientation offered by FCS twice monthly to gather general information regarding child custody and Family Court matters. This orientation lasts about one hour and is offered on the 3^rd Tuesday of every month at 12:00 p.m. and the 1^st Thursday of every month at 4:00 p.m. Both sessions are held at the FCS Conference Room at the Family Law Court located at 1555 Sixth Avenue, San Diego, CA 92101. Call (619) 450-7888 to confirm availability before attending. Please also be aware that the San Diego downtown Family Law Court location will be moving some time this year to its new location at 1100 Union Street. To be sure, contact FCS before attending either orientation to confirm its location or visit the following website: Custody & Visitation (FCS).

The Zarin Law Firm offers preparation and consultation in advance of FCS mediation. Please contact our office if you wish to discuss your case with an experienced family law attorney.