Category Archives: Custody

School Choice – Is Mediation Mandatory?

Judicial Oversight of Requests Regarding Education

Parties in family law cases involving custody may dispute school enrollment decisions related to their children, be it choosing between public and private school, or which district in which to enroll.  When communication between and the parties and counsel reaches an impasse and Court oversight is requested, is Family Court Services the next step or does the issue proceed directly to judicial determination?

When is Family Court Services Mediation Required?

            Family Code Section 3160 requires every Superior Court in California to have mediation services available.  If a family law matter is one that requires mediation, the mediation must occur before prior to the scheduled hearing.  Family Code Section 3175.  In setting child custody matters for mediation, Family Code Section 3170(a) requires that a controversy be sent to Family Court Services if it appears that a request has been made related to the parties’ parenting plan.  Specifically, “if it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.”  Family Code Section 3170(a).  Mediation is not required when the issue(s) involved are related to legal custody, such as educational decisions.

            The legislative motivation for this appears rational: while parties may be able to find middle ground on issues related to the sharing of weekends and scheduling intricacies of exchanges, they would be less willing to compromise on a particular pediatrician, involvement in therapy, or which specific school is in the best interest of their child.  Accordingly, removing these from topics addressed at Family Court Services and instead placing them solely before the judge economizes Court resources in accordance with public policy.

Preparation for Hearings Regarding Educational Decisions

            Preparing for this distinction in cases involving disputes over educational decisions is important, both in pleadings and on the day of the parties’ Family Court Services appointment.  Due to the fact that the judge will not have a Family Court Services Report to aid their decision, pleadings should contain as much information as possible regarding the educational options presented.  This is best achieved by way of thorough research introduced via exhibits or by a declaration from an educational expert.  On the day of the Family Court Services appointment, the client should be instructed to politely direct the focus of the mediation from the educational issue to the other issues at bar.  If a Family Court Services Report is later issued that contains recommendations related to education or other legal custody issues, a valid objection to exclude exists.  Finally, if it appears that the parties involved may benefit from discussing their differing points of view related to education, consider hiring a private mediator to review this in more detail with the parties prior to the hearing.

Gatekeeping – Appropriate and Protective or Inappropriate and Restrictive?

One of the central areas of dispute in custody cases is whether one of the parents should have less time with a child than the other.  One possible explanation for why one parent might want a child (or a child may express a desire) to have less access to the other parent is that the child has been harmed by the parent.    On the other hand, one of the parents may be trying to restrict the other parent’s access to a child without a valid, or valid enough, reason. These behaviors are often described as either “appropriate or protective gate-keeping” versus “inappropriate restrictive gate-keeping.”  Appropriate gate-keeping versus inappropriate restrictive gate-keeping were at the heart of the custody dispute between Brad Pitt and Angelina Jolie.  Brad Pitt alleged that Angelina Jolie was a restrictive gate keeper where Angelina Jolie alleged that she was a protective gate keeper. 

A parent actively restricting or attempting to restrict the other parent’s access to a child to protect the child from harm may be acting appropriately.  A fairly obvious example of why one parent may want the other parent to have limited access to a child could be a history of child abuse or exposure to domestic violence.  In the most extreme cases, appropriate gate-keeping may result in the non-custodial parent having no contact with a child because of the harm that such contact might cause. 

Conversely, the term restrictive gate-keeping would apply to a parent who inappropriately attempts to limit a parent’s access to a child, either by passively or actively encouraging a child to not interact with the other parent or by finding other means to limit such access, such as over-stating harm caused to a child while in the other parent’s care.  On the extreme end of such behavior, one parent may be actively alienating a child from the other parent solely due to animus or anger held towards that parent.  Inappropriate gate-keeping is harmful to a child due to the impact that such behavior may on a child’s ability to form a health bond with the non-custodial parent.  In extreme cases, inappropriate gate-keeping may result in the gate-keeping parent losing primary custody of a child.   

There are other reasons for parents to not have equal parenting time with a child that are not related to protecting or over-protecting a child.  For example, a child’s desire to be with one parent more than the other may be a healthy expression of a developmental need.  However, if a parent over-encourages such an expressed desire, even an appropriate expression of a developmental need by a child can end up blending into inappropriate gate-keeping behavior of an adult.  In other words, the difference between appropriate and inappropriate gate-keeping can be quite subtle and may include a blend of appropriate and inappropriate behaviors, which can make it very difficult to determine whether access restrictions will ultimately protect a child or cause him or her harm.

The framework described above is an important one to have in mind for a parent with concerns about the other parent’s behavior to the point that he or she believes that restricting the other parent’s access to the child, whether in minor or major ways, is needed.   A parent facing this dilemma will need to make sure that the level of gate-keeping is appropriate and in proportion to the alleged harmful behavior, or otherwise risk harming the child by unnecessarily over-restricting their access to the other parent.  Such over-restriction may also undermine the concerned parent’s legal position in a custody dispute.   

This framework is equally helpful and important to consider for the parent whose access is being limited.  In many cases, the other parent’s restrictive behavior may be motivated by both appropriate and over-restrictive impulses.  Acknowledging that there may be valid issues that the restricted parent may need to address for the benefit of the child, while also countering the inappropriate gate-keeping behavior of the other parent, can be critical for a child’s well-being.  Taking this more nuanced approach can also support the restricted parent’s legal case for having more access to the children.   

It is often very hard for both the parent seeking to limit the access of the other, and the parent whose access is being sought to be limited, to know what concerns are valid and require action, and how to evaluate such concerns in the broad context of the what is best for the children.  Some concerns may seem severe to a parent, but the solution may not be to go to Court if the Court is not likely to provide the relief sought.  Conversely, some concerns may be given too little weight, even though immediate action by the concerned parent may be required. 

An attorney with experience and training in custody will be able to provide a perspective on what might be in a child’s best interest, as well as what gate-keeping behavior the Court might consider to be appropriate or troubling and how a Court may respond to each set of facts.  An experienced mental health professional acting as an adviser may also provide invaluable, healthy perspective and guidance about what might be best for a particular child.  Finally, Co-parenting counseling or mediation may be the right venue to work out many of the parental concerns, which are often complex and do not fit into a “the behavior is over-restrictive and harmful” versus “the restrictions are appropriate and protect the child” dichotomy that is more likely to be played out in a Court-contested custody case.    

Regardless of whether a parent chooses a more adversarial or more cooperative approach to resolving custody, looking at custody disputes, especially highly contested ones, through a prism of appropriate, protective gate-keeping and inappropriate, restrictive gate-keeping is a helpful framework for thinking through the parental dynamic, and what is in a child’s best interest.        

California Court Ruling Supports Biological Father’s Standing as Third Parent

In C.A. v. C.P. et al., the Third Appellate District recognized the parental rights of a child’s mother, husband parent and biological father (C.A.). The child was born into an intact marriage after mother had a short relationship with C.A. All parties were aware of the child’s paternity, acknowledged C.A. as the biological father, and were actively involved in the child’s life from birth until she was three. During that time, C.A. had regular overnights with the child, held her out as his own, accepted her into his family, and supported her financially. This action arose when mother and husband refused to allow C.A. to continue visiting with the child.

Under the holding in C.A. v. C.P. et al., the Court determined that both C.A. and husband qualified as fathers of the child: C.A. as a presumed natural parent pursuant to Family Code Section 7611(d) and husband under Family Code Section 7540. C.A. fulfilled the requirements to be considered a presumed natural parent by receiving the child into his home and holding her out as his natural child, which both wife and husband cooperated with. Husband was conclusively presumed a natural parent because he was married to and living with wife at the time of the child’s birth.

Once acknowledging the standing of both men’s paternity, the Court looked to Family Code Section 7512(c), which allows recognition of more than two parents if only recognizing two parents would be detrimental to the child. In their analysis, the Court referenced the statement of legislative intent accompanying Family Code Section 7512:

“(a) Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.

(b) The purpose of the bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197 insofar as it held that where there are more than two people who have a claim to parentage under the Uniform Parentage Act, courts are prohibited from recognizing more than two of these people as the parents of a child, regardless of the circumstances.

(c) This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents.” Sen. Bill No. 274 (2013-2014 Reg. Sess.).

In their findings, the Court highlighted the long-standing bond that the child had with C.A. and his deep involvement in many aspects her early life. The key inquiry was if C.A. had an extant relationship with the child and if removal of this relationship would be in contradiction of the child’s best interest, specifically her need for stability. Finally, the Court held that their recognition of three legal parents did not violate Constitutional protections of marriage and paternal rights.

C.A. v. C.P. et al., provides a roadmap for parents that may be involved in future three party custody cases. Once standing is established through a valid claim of paternity, the Court will examine the extent of the claimant parent’s involvement in the child’s life and determine if it is in the best interest of the child to maintain that bond through a legally recognized relationship. The more consistently involved the claimant parent is, the more likely they are to be recognized as a legal parent. This serves as both instructive for possible biological fathers wishing to assert their parental rights and as a cautionary tale for married parents of a child with a third party biological parent.

Custody Evaluations and proposed legislation re People v. Sanchez (2016) 63 Cal. 4th 665

People v. Sanchez represents a potentially significant evidentiary problem in the context of custody and visitation cases involving a custody evaluation and report.

Under the holding in Sanchez, which is a criminal law case, case-specific, out-of-court statements that are relied upon by an expert to form his or her opinion are considered hearsay and are inadmissible and excluded from the record unless a hearsay exception applies.  Custody Evaluators, and to a lesser extent Recommending Mediators, gather collateral testimony and documents and rely on such materials in their reports to formulate their opinions regarding custody and visitation.  Unless the parties stipulate to the admissibility of the Custody Evaluator’s report as a whole, any collateral evidence that may have supported the Custody Evaluator’s conclusions could potentially be excluded under Sanchez.  What’s more, if the Custody Evaluator’s findings relied primarily on excludable hearsay, there’s a possibility that the report and recommendations might be excluded.

To date, this concern over whether and to what extent Sanchez applies to custody evaluations remains somewhat theoretical.  The issue has not yet made its way through the appeals process and some experts in our field predict it never will due to the statutorily-sanctioned, investigative-nature of custody evaluations.  Nonetheless, amongst family law attorneys, the holding in Sanchez has created uncertainty as to whether a custody evaluation and its underlying evidence will or will not be excluded.  This uncertainty  often leads to litigation, and with it, the associated drain on both private and public resources.

Senate Bill 1276, which could come up for a vote later this year, proposes revisions to California Evidence Code §§ 801-803 is designed to address the above problem (and similar ones from the broader context of civil litigation).  The most significant changes are found within the text of § 801 of the Code.

The current language of Evidence Code § 801 code is as follows:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

Under the proposed legislation, the following section would be added to the above language found Evidence Code § 801 (along with some additional relatively minor changes):

(b) In civil proceedings, evidence of a statement used to support the opinion of an expert is not made inadmissible as hearsay if the court, in its discretion, determines that the statement is reliable. In determining the reliability of a statement, a court shall consider the following:

(1) Whether, the expert routinely relies upon similar statements in his or her professional capacity outside of the court.

(2) The expertise of the expert, including his or her experience, in evaluating the trustworthiness of the sources of information relied upon in forming his or her opinions.

The new Code creates an exception to hearsay that the Court has the discretion to apply in civil cases only, looking at two factors: (1) whether the information considered by the Expert is considered routinely; and (2) whether the Expert has the experience to evaluate the trustworthiness of the sources of information.  In the context of custody evaluations, the Evaluators routinely rely on collateral sources of information for their reports – such as documents, testimonials, interviews, etc. Custody Evaluators also have the experience and clinical expertise needed to sufficiently investigate the matter and to apply the proper weight and significance to the facts gathered by them. For example, Evaluators rarely rely on a particular collateral source without assessing the information obtained from one such source in relation to other data and information.  Therefore, it seems likely that the case-specific, out-of-court statements often relied on by Custody Evaluators — which may be considered hearsay in other contexts — will not be excluded as such under SB 1276’s proposed revisions to the Evidentiary Code.

Sanchez seems to make sense in the criminal law arena, where the individual rights that are at stake may require the highest due process protections and a more strict application of the hearsay rules. SB 1276 is designed to eliminate the uncertainty created by Sanchez in the context of civil matters that often rely on expert testimony, such as in the custody evaluation context.  For many family law practitioners in particular, the above distinction between criminal and civil practice under the new proposed code is a welcome change.  Hopefully, SB 1276 will pass.

Mandatory Mediation in Custody Cases

In California, mediation is mandatory whenever custody and visitation are at issue, and for good reason – custody mediation can have a very positive, long-term impact on families. See summary of Dr. Robert Emery’s 12-year study on the effects of divorce mediation at On the other hand, some have questioned the fairness of mandatory mediation in custody cases in California. See, e.g., Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991). Regardless, there is a fairly wide consensus within the field of mediation that the benefits derived from mediation and the fairness of the mediation process itself depend on how the mediation process is being offered.

In light of the mandatory mediation requirement, two types of mediation are offered through the California court system: (1) recommending mediation/counseling; and (2) confidential mediation. Compare Cal. Fam. Code Sections 3183 and 3188. Each County in California may select the type of mediation that parties to a custody dispute must attend.
Under the recommending mediation approach (formally titled “recommending counseling”), the mediator first tries to help the parties reach a consensual agreement. If the parties cannot do so, the mediator then provides the parties and the court with non-confidential recommendations regarding custody and visitation. The parties can agree to adopt the recommendations, or the court may decide to adopt or modify the recommendations after hearing the parties’ arguments for and against adoption. For reasons that are fairly apparent, the non-confidential recommendations can have a significant impact on how parties negotiate and/or how the court rules. One of the advantages of the recommending approach is that the parties have the opportunity to meet with a psychologist or therapist trained to deal with families who can first try to help them in a more consensual process but can then also make a recommending to the court based on his or her professional expertise. One potential disadvantage of the recommendation approach is that parties often approach recommending mediation as a process within which they advocate their position to the mediator rather than try to candidly communicate with one another and problem-solve. As a result, the potential of reaching a consensual agreement is often diminished.

In contrast, under the confidential mediation approach, neither the mediator nor the parties can report the content of the mediation to the court other than reporting any actual agreement reached. This approach allows parties to have more frank conversations with the help of the mediator without worrying about the impact their conversation may have on the outcome of their case. However, unlike the recommending approach, the only immediate, tangible by-product of a confidential mediation is when the parties do in fact reach an agreement. Although confidential mediation may very well pay dividends well beyond an immediate agreement, confidential mediation may be less efficient than recommending mediation, at least in the short-term.

Another way to look at the difference between these two approaches is that under the recommending approach, the goal is dual: (a) to try to help the parties reach their own agreement; but if they cannot agree, then (b) to provide the court with assistance/guidance by way of issuing a recommendation. Under the confidential approach, the only goal is to help the parties reach a consensual agreement via a confidential process.

Many Counties, including Alameda, have adopted the recommending mediation module. Others, like San Francisco County, provide confidential, non-recommending mediation. Contra Costa County has been a recommending mediation County for many years; however, recently the County announced a planned shift to a hybrid confidential/recommending module starting in March 2018. This hybrid approach involves a first tier of confidential mediation, a second tier of fact-gathering conducted by a different mediator, and a third tier of recommending mediation with the same mediator that conducted the second tier fact-gathering. Referrals to tiers two and three will be at the discretion of the Judge presiding over the case. The Contra Costa module, is designed to reap the benefits of confidential mediation and recommending mediation/counseling, but at different stages of the case.

One of the limitations of court-connected mediation services is the court’s lack of resources, which limits the amount of time dedicated to mediation. Parties do have the option to opt out of the court-connected services and stipulate to private mediation. Our office (which practices in Contra Costa and Alameda) often explores with our clients the option of working with a private recommending mediator/counselor or a private confidential mediator. While this service is not free, it does allow for a more thorough and holistic approach to resolving custody and visitation issues and often saves a fair amount in attorney’s fees.

To conclude, parties with disputes over custody need to understand that there are important choices to be made regarding the mediation process (as a stand-alone process or in conjunction with litigation), choices that can significantly impact how custody and visitation is determined. It is very important for attorneys and their clients to have a discussion about these various processes at the onset of the case.


The actress Halle Berry took her ex husband to court for straightening their daughter’s hair without her consent.  The news article is located here.

Leaving aside any racial component, a child’s appearance falls under “legal custody”.  As noted previously, certain decisions require joint agreement, and if the parties cannot reach an agreement, the Court may be called in to make a decision.  The Court (or the parties) can also craft “joint legal custody” orders to specify what actions require joint agreement and which do not.

For example, a joint legal custody order may require that parents agree to all non-emergency decisions about a child.  The parties may also agree that one party may be “in charge” of educational decisions while the other party is “in charge” of selecting the child’s doctor.  The Courts provide a template for different types of joint legal custody orders.  Parents are free to divide the responsibilities as they wish assuming the child’s best interest is basis for that division.

If you have questions about joint legal custody provisions, be sure to speak to an experienced family law attorney.

The Petition – Part 7 (a), (b), and (c) – Custody & Visitation

In a dissolution proceeding, the Court has jurisdiction (or power) to make custody and visitation orders.

Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Fam. Code § 3003.

Joint physical custody means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020. Fam. Code § 3004.

Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Fam. Code § 3006.

Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. Fam. Code § 3007.

Does “joint legal custody” require agreement on every single parenting decision?  In short (and as was likely true in the marriage), no.  The parent with the current physical custody of the child (in other words, the child the parent is with) can make the every day decisions for the child.  Emergency care?  Yes.  Switching schools?  No.  Pierced ears?  No.  The latter decisions require joint agreement, and if the parties cannot reach an agreement, the Court may be called in to make a decision.  The Court (or the parties) can also craft “joint legal custody” orders to specify what actions require joint agreement and which do not.

Visitation can also be described as the timeshare, or the time the child spends with each parent.  The timeshare could be a week-on/week-off, alternating weekends, 2/2/3, or 2/2/5 schedule.  The timeshare depends on the parties and what is in the best interest of the children.  Different schedules may be appropriate depending on the age of the children.  Sample calendars of difference timeshare schedules are located here.

Most Courts will advise parties that it is best for parties, and the children, to have the parents reach an agreement on the custody and visitation schedule.  If the parties cannot do so between themselves or with the help of mediation, the Court will make a decision focusing on frequent and continuing contact with both parents and the best interests of the children.

If you have questions about custody and/or visitation, talk to an experienced family law attorney.

Beware Social Media!

A recent Doonesbury cartoon should remind all family law parties to watch what they post to their Facebook page.

While the comic focuses on potential adultery (not a specific ground for dissolution in California), Facebook and other social media posts can potentially impact support and custody/visitation decisions.  For example:

  • Support:  If a party claiming the need for support simultaneously posts photos and status updates about their expensive vacation to Europe, you can expect the opposing party to raise this issue as an argument against support.
  • Custody/Visitation:  If a party claims that he is the best (and only) person to care for the parties’ child, and photos surface of the child holding a Solo red cup; the other parent may use this information to let the court know about the parent’s “relaxed” parenting style.

In short, if one does not want information before the Court, don’t post it to social media.  Don’t rely on your privacy and security settings.  Keep your dissolution and opinions about the other party to yourself and share only with your attorney.


Surrogacy is defined as “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children” (Merriam-Webster).  Laws vary state to state as noted in this recent New York Times article.

In California, surrogacy is lawful (and regulated).  The Family Code speaks about it here.  In short, the parties enter into a contract whereby a woman will become pregnant via in vitro fertilization and birth a child that is not intended to be her own (nor is she genetically related to the child).  She may enter into the contract with a married couple, those in a domestic partnership, or a single person.  The contract needs to clearly spell out the terms including, but not limited to: the persons from which the egg and sperm came (unless anonymously donated) and the identity of the intended parent(s).

Be sure to speak to an experienced reproductive rights attorney before signing a surrogacy contract.



Fewer Marriages Do Not Necessarily Result in Fewer Children

The New York Times recently published an opinion piece entitled “Beyond Marriage“.  The author discusses the reduction in the number of marriages (and possible causes), but cites studies that say:  40% of children are born outside of marriage.  The author suggests a number of ways to assist these mothers and their newborn children.

Even if a couple is not married (or even if they are no longer in a romantic relationship), either parent can attempt to establish paternity of the child via a Petition to Establish Parental Relationship.  Once the parental relationship is established, the father then has rights to custody and visitation of the child (subject to the the “best interest” of the child) as well as the legal obligation of support.  Parents can also sign the Declaration of Paternity to facilitate the paternity process.

If you are a parent of a child born out of wedlock, be sure to talk to an experienced family law attorney to help determine your right and obligations as well as those of the other parent.  And perhaps most importantly, the rights of your child.