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Custody mediation in cases with domestic violence

Every court offers mediation where professionals help parents come up with a parenting plan. If you or the other parent are asking the judge to make child custody orders, you will likely meet with a court mediator.

Mediation focuses on the best interests of children

Mediators are trained mental health professionals who work for the courts. They are knowledgeable about child development, family dynamics, and the effects of separation, divorce, and trauma. They are trained to understand domestic violence and to help create plans that are safe for the whole family.

If you are worried about your safety or your children's safety, tell the mediator

You can ask to speak with the mediator alone. If there is a restraining order in your case or one parent is accusing the other of domestic violence, you have a right to meet separately with the mediator.  You can also bring a support person with you to mediation and mediation orientation.

Even if you meet separately with the mediator, they could tell the other parent what is said. If the mediator suspects child abuse, they may have to report it. Ask the mediator about privacy or confidentiality if you have any concerns.

Mediators help parents create a parenting plan

A parenting plan will deal with child custody and visitation (parenting time). In cases of domestic violence, mediators must help create plans that protect the parents and children.

    • child custody

      There are two types of child custody:

      • Physical custody: The person that the child lives with on a regular basis.
      • Legal custody: The right for a person to make important decisions about the child’s health care, education, and welfare.

      For both types of custody, parents can share custody (joint custody) or one parent can have full custody (sole custody). A judge grants custody based on what's in the best interest of a child.

    Parenting plans can include:

    • Safe ways for parents to spend time with their children, like supervised visitation
    • Details that can help parents avoid conflict
    • Safe places to drop off or pick up children

    There are limits to what can be discussed in mediation

    Mediation only addresses the legal and physical custody of the child and parenting time. Mediators can also tell you about getting help with housing, counseling, or financial problems. Mediators do not discuss the evidence against the other parent, or issues like child support, spousal support, or how to divide property.

    You do not have to, but can reach an agreement in mediation

    If you reach an agreement

    If you and your children’s other parent both agree on a parenting plan, the judge will review it and decide whether to approve it. If approved, the judge will sign it and you will be done. You will have a court order.

    If you do not reach an agreement

    If you and the other parent do not agree on a parenting plan, then the judge will make the decision about custody and parenting time in your case. Sometimes, it may happen on the same day of mediation. Other times, you will have to return to court to see the judge.

    Preparing for mediation

    Understand the law around custody and domestic violence

    If there's been domestic violence in your family, special laws apply when a judge makes a decision about who gets custody of your children. Which law applies depends on when the domestic violence happened and if a court was involved. 

    • If there was a conviction for domestic violence or a restraining order 

      If a parent has been convicted or committed domestic violence for an incident that happened in the last five years, then a law called "3044" applies. This law requires a judge to go through a detailed decision-making process before giving an abusive parent custody of a child. 

       

      This usually means that the judge grants the non-abusive parent sole legal and physical custody of the child. The parent who committed the abuse can still get some visitation with the child.

      Get more information on "3044."

      More information about "3044" in other languages. 
      Get a Family code section handout in:
      Spanish
      Chinese
      Tagalog
      Russian
      Korean
      Punjabi
      Arabic
      Vietnamese

    • If one parent accuses the other parent of domestic violence

      If a parent accuses the other parent of domestic violence, the judge must consider the allegation and decide what custody order would be best for the child. If the judge gives any custody or unsupervised visits to the parent accused of domestic violence, the judge must clearly explain the reasons for doing so.

       

      If you want the judge to know about domestic violence in your case, you can write a statement on form MC-030 and file it with the court.

    Attend orientation before going to mediation

    If you have never gone to mediation before, or if it’s been a long time, you will have to go to orientation. Each court has a different type of orientation. It could be online or in-person, on the same or different day than your mediation appointment. Check your court’s website for the programs offered by Family Court Services.

    There are two different types of mediation

    Some courts use mediation, others use recommending counseling. There are a few differences, so it can be helpful to find out which one your court uses so you know what to expect. Contact your court to find out which model your court uses. Below is information on both models:

    Video: Orientation to family mediation

    This 30-minute video describes the mediation process, provides helpful information about parenting plans, and offers tips on how parents can reduce conflict and help their children adjust to the changes happening in their family.

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