Monthly Archives: February 2020

School Choice – Is Mediation Mandatory?

February 7th, 2020

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.