Chapter Eight: How Is The Decision Made As To Where Our Child[Ren] Will Live?

You want to know who and how the decision will be made as to where your child[ren] will be living and what is the exact parenting plan. In San Diego, California, this is accomplished by a mediation with Family Court Services if the parent’s cannot reach an agreement. Of course, it is always best to reach an agreement however this does not occur in every case. As such, the dispute resolution method is listed below in some detail.

In California, before a Judge will make an order regarding custody and visitation [absent emergency such as molest, abuse or neglect which normally is accompanied by a Child Protective Service recommendation] the parents must attend mandatory mediation. San Diego is a “recommending” County as opposed to Orange which is a “non recommending” County. This is crucial since, in San Diego, if the parents do not reach an agreement, then the mediator will prepare a written report and give a copy to each parent and then a copy to the Judge.

In my experience, the San Diego County Judge’s follow the mediator’s recommendation 90%+ of the time since the mediator is a licensed clinical social worker who is hired by the Court to meet with parents and try to get the parent’s to reach an agreement and, if not, then to make a written recommendation. Of course, this is a very artificial process since the mediator does not know you or your spouse or your children. As such, it is crucial to try and have the mediator make the recommendation you would like. Below is specific information on what to say and what not to say.

The first words out of your mouth should be “I want to reach an agreement”. This is correct since all parents should want to reach agreements and lessen tension and conflict and realize any plan they make is most preferable. In addition, the mediator’s want parent’s to reach agreements since they also believe this is best and reduces tension and conflict.

The legal standards which the mediator will look to is the best interests test which is too complicated to entirely discuss in this book however the doctrine of stability, bonding, frequent and continuing contact with each parent, cooperation in the parenting plan and other factors are discussed. As such, it is crucial that facts are presented to the mediator as to why you are asking for the parenting plan you want in terms of the best interests of the children and as to the above factors.

It is also crucial not to say something which would have the mediator influenced negatively against you without you understanding why. As such, in this book, three issues will be discussed which you should not do in mediation. The first issue is the inverse relationship between custody and visitation and child support. Again, the more percentage of visitation the non custodial parent payor has, the less child support will be paid to the payee. Conversely, the less percentage of visitation the non custodial parent payor has, the more child support will be paid to the payor. This is a simplification and there are many other factors to consider however, in the algebraic formula for the state guideline for child support which is discussed in greater detail below, the percentage of visitation is a highly weighted factor.

My experience is that no parent goes to the mediator and informs the mediator that they do not care about the best interests of their child and that they only want {as the payor} to lower their child support or {as the payee} to raise their child support. Instead, the parent’s discuss money and support with the mediator and the mediator may believe that the reason the parent wants more time {or less time} is due to support and not the best interests. As such, and since the mediators do not make decisions about support in any event, do not discuss money or support with the mediator.

The second issue is revenge and “getting even” for conduct {either real or perceived} which happened during the relationship, marriage, during the divorce or after the divorce. Again, my experience is that no parent goes to the mediator and informs the mediator that they do not care about the best interests of their child and that they do not care about money but are mad at the other parent and want revenge. Instead, the parent discusses all negative aspects of the other parent and the mediator may believe the reason the parent wants additional time [or less time] is due to revenge.

The third issue, and this is one which is very common, is the use of the word “my” when referring to your child or children. If you use the word “my”, the mediator may believe that you are an uncaring, possessive and selfish parent and will not cooperate and co parent. Instead, my suggestion is always to use the word “our” which will demonstrate that you are a caring, promotive and sharing parent. There are many other issues and only these three will be discussed in this guide.

In San Diego, California, there are many services for family court services “coaching” assistance which you can take advantage of prior to the mediation. Some are done by the attorney and some are done by other private parties such as former Family Court Services employees and other professionals.

>> Chapter Nine: How Is The Amount Of Child Support Determined And For How Long?

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