Custody dispute in Orange County: what happens in court-ordered mediation?

When custody or visitation is contested, California law requires the court to send the dispute to mediation (Family Code § 3170(a)). In Orange County, Family Court Services holds that mediation by Zoom; each parent completes an intake form and watches an orientation video, offered in Farsi among other languages. If the parents agree, the plan goes to the judge and becomes a court order once approved; if they do not, the Orange County mediator makes no recommendation and the judge decides.

Before mediation, a parent needs to know who the mediator is, whether what they say is repeated to the judge, whether they can bring an attorney, and what happens if they cannot agree. This page answers them for the Superior Court of California, County of Orange. The legal test the judge applies, the child's best interest, is explained on the page about how California courts decide custody and visitation.

Mediation is a step in the court case, not a substitute for it. Its purpose, as the court describes it, is to reduce conflict and help parents build a parenting plan focused on the children. The judge still makes every order, either by approving what the parents agree or by deciding what they do not.

How Orange County custody mediation works, step by step

1. A request starts it. A parent files a request about custody or visitation in a divorce, a parentage case or a restraining order case; the first papers of a divorce are covered on the page about filing for divorce in Orange County. The Orange County court explains that mediation is required whenever parents do not agree on custody or visitation, including when one parent wants to change an existing order, and that the clerk sets a mediation appointment and a hearing date when a Request for Order is filed. Divorce filings and requests for orders go to the Lamoreaux Justice Center, described on the page about what to expect at the Lamoreaux Justice Center.
2. Complete the intake form. Each parent referred by the family court must complete the Mediation Intake Form and Questionnaire. The court says failing to complete it before the appointment will delay services. Parents without an email address can get and submit a paper form at the Family Court Services window on the 5th floor.
3. Watch the orientation video. Parents must watch the Orientation to Mediation video before mediating. The court offers it in English, Spanish, Vietnamese, Korean, Mandarin, Farsi and Arabic.
4. Prepare for Zoom. All Family Court Services appointments are scheduled by Zoom videoconference. You need a reliable connection, a device with camera, microphone and speaker, and a quiet private place; headphones are recommended. If technology limits prevent you from joining, call Family Court Services at (657) 622-6196 to ask for an in-person appointment. Once scheduled, an appointment cannot be rescheduled.
5. The session. The court says mediation is generally limited to the parents and the mediator. Attorneys do not take part in the session, though they can advise their clients before and after. Children, relatives and others join only if the mediator asks or agrees. The mediator, a neutral court professional with a master's degree in psychology, social work, counseling or a related field, helps you work through legal and physical custody, the regular schedule, holidays and vacations, exchanges, communication and decision-making.
6. If you agree. The mediator writes the agreed terms into a proposed parenting plan for both parents to review. It goes to the court, and if the judge approves it, it becomes a court order. Anything left unresolved stays for the judge.
7. If you do not agree. The Orange County court states that its mediator does not make custody or visitation recommendations to the court, and the mediation discussions stay confidential. The unresolved issues go back to the judge, who may decide them on the evidence presented or order further Family Court Services work, such as an investigation.

Confidential and non-recommending: what that means in Orange County

State law says custody mediation is held in private and is confidential, and treats what parents tell the mediator in the proceeding as official information under Evidence Code § 1040 (Fam. Code § 3177). Courts may choose a second model: under § 3183(a), a mediator may, consistent with local court rules, submit a recommendation to the court after giving it to the parties in writing before the hearing, and that process is called child custody recommending counseling. The state self-help guide notes that some courts use mediation and others use recommending counseling, and suggests finding out which one your court uses.

Orange County uses mediation without recommendations. Its Family Court Services page says that if parents do not reach agreement, the mediator does not make custody or visitation recommendations to the court. Even then, § 3183(b) lets a mediator recommend that an investigation be done or other services be offered, and § 3183(c) lets the mediator recommend restraining orders in appropriate cases to protect the child. Confidentiality also has limits the mediator will explain at the start: a mediator who suspects child abuse may have to report it.

What changes the answer?

• Domestic violence. Domestic violence cases are handled by Family Court Services under a separate written protocol (Fam. Code § 3170(b)). The state self-help guide says that if there is a restraining order in the case or one parent accuses the other of domestic violence, you have a right to meet separately with the mediator, and you may bring a support person; the Orange County court adds that the support person may not speak for you. The restraining order process is on the page explaining how to get a domestic violence restraining order in Orange County.
• A finding of abuse. If the court finds a parent perpetrated domestic violence within the previous five years, there is a rebuttable presumption that giving that parent sole or joint custody is detrimental to the best interest of the child (Fam. Code § 3044(a)). When abuse is alleged, the court must tell the parties about § 3044 and give them a copy before custody mediation (§ 3044(h)), and it cannot base a finding solely on the recommendation of Family Court Services staff (§ 3044(e)).
• A criminal case. A criminal court can issue its own protective order in a domestic violence prosecution, and it can exist alongside the family case. See the page on what a criminal protective order means for your home and children.
• The child's age. A child 14 or older who wants to address the court about custody must be allowed to, unless the court finds it is not in the child's best interest and states why (Fam. Code § 3042(c)). Orange County Family Court Services offers minor interviews for children 12 or older as its own practice.
• Money. Mediation does not address child support, spousal support or property. Those go to the judge, as explained on the page about how child and spousal support are decided.
• Language. Family Court Services says court-provided interpreters are available at no cost and asks you to notify it as early as possible. The statewide rule requires each court to ensure that, whenever possible, mediation is available from bilingual mediators or other interpreter services (Cal. Rules of Court, rule 5.210(d)(1)(E)).

A worked example

For example, imagine Payam, a hypothetical Persian-speaking father in Newport Beach, and Mahsa, the mother of their two children, who lives in Irvine. They separated in the spring, and neither has been charged with any offense, so the criminal domestic violence rules play no part. Payam filed a Request for Order asking for equal parenting time; Mahsa wants the children with her during the school week and worries about Payam's plan to take them to Iran for Nowruz.

The clerk sets a Family Court Services appointment and a hearing. Mahsa completes her intake form online and watches the orientation video in Farsi; Payam submits a paper intake at the 5th floor window because he has no email set up for court notices. Both join Zoom from private rooms, without the children. Payam's attorney, who cannot join the session, has helped him think through a realistic schedule beforehand.

In mediation they agree on school-week time with Mahsa, alternate weekends and a Wednesday dinner for Payam, and a holiday rotation that alternates Nowruz and the winter break. They cannot agree on travel to Iran. The mediator writes a proposed parenting plan covering what they agreed, and because Orange County mediators make no recommendation, the travel question goes to the judge with no report about what either parent said. The judge approves the plan and hears the travel issue separately, where questions about passports and travel safeguards arise. Readers who want to know who the attorney is can read about Sourena Sarbazevatan.

Common mistakes

• Skipping the intake form. The court says a missing intake form delays mediation.
• Assuming you can move the appointment. Once a Family Court Services appointment is scheduled, it cannot be rescheduled.
• Bringing the children. The state self-help guide says not to bring children to mediation; children take part only if the mediator asks or agrees.
• Emailing documents to the mediator. The court says not to send documents directly to the assigned mediator unless told to, and that it cannot accept one-sided communications about a case.
• Using mediation to argue support or blame. Mediation covers custody and parenting time only; evidence against the other parent, support and property are for the judge.
• Coaching a child before a minor interview. The court tells parents not to coach the child or question the child about the interview afterward.

What to do this week

1. Find your mediation date and hearing date in the papers from the clerk, and note that the appointment cannot be moved.
2. Complete the Mediation Intake Form and Questionnaire.
3. Watch the orientation video, in Farsi if you prefer.
4. Test Zoom on the device you will use, in the private room you will use.
5. Write a proposed weekly schedule, a holiday plan including Nowruz, and how exchanges and communication will work.
6. If there is violence or a restraining order, tell Family Court Services and ask to meet separately, and arrange a support person.
7. Talk with a California family law attorney before the session; book a meeting through the contact page.

Frequently asked questions

Is custody mediation mandatory in Orange County?

Yes, when custody or visitation is contested. Section 3170(a) requires the court to set contested custody or visitation issues for mediation, and the Orange County court says this also applies when a parent asks to change an existing order.

Will the mediator tell the judge what I said?

Mediation is private and confidential under § 3177, and the Orange County court says its mediator makes no custody or visitation recommendation if the parents do not agree. Limits apply: a mediator who suspects child abuse may have to report it, and the mediator explains the limits on confidentiality at the start.

Can my attorney come to mediation?

No. The Orange County court says attorneys do not take part in the Family Court Services mediation session, but they can advise their clients outside the appointment. State law gives a mediator authority to exclude counsel when, in the mediator's discretion, that is appropriate or necessary (Fam. Code § 3182(a)).

Does mediation cost anything?

The court says mediation and certain other Family Court Services services are provided at no cost, while some court-ordered investigations and assessments require payment. Any fee may be identified in the court order or appointment information.

Can I mediate in Persian?

Family Court Services says court-provided interpreters are available at no cost and asks you to tell it as early as possible. The orientation video is offered in Farsi.

What happens if we agree on some things but not others?

The mediator documents the partial agreement in a proposed parenting plan, which goes to the court. If the judge approves it, it becomes an order, and the unresolved issues remain for the judge to decide.

Can I ask to change a custody order later?

Yes. File a Request for Order in your existing case. The court will set any required mediation appointment and a hearing; Family Court Services cannot change orders or schedule hearings itself.

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in custody and visitation matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.