For all disputes pertaining to child custody and visitation, Family Code section 3170(a) requires that the parents appear at Family Court Services (FCS). FCS is an arm of the Superior Court that assists the judicial officer (whether a judge or commissioner) under Family Code section 3180 by assessing the needs and interests of the child(ren) involved in a parenting dispute.
The parents’ appearance at FCS is for a typically one-to-two-hour “recommending conference” with a mental health professional, normally a Licensed Clinical Social Worker or Licensed Marriage and Family Therapist). The mental health professional’s formal title under the Family Code is “recommending counselor.”
The prepared parent has homework to do well in advance of attending FCS. Preparation is critical to obtaining a favorable written recommendation from the recommending counselor. A parent must present well, by answering the recommending counselor’s questions appropriately, knowing and being able to recite to the recommending counselor the parenting plan the parent believes would be in the best interest of the minor child(ren), and being able to recite the facts supporting it. Conversely, when the other parent describes his or her preferred parenting plan, being able to explain why the other parent’s proposed parenting plan is less favorable to the child(ren) is a must. Pity the parent who walks into the recommending conference and hasn’t prepared for it.
Further, a Family Court Services Mediation Data Sheet must be completed in advance of the recommending conference. It takes an hour or so to provide the information requested, depending on how well organize the parent is. It is better to complete the Data Sheet at home, well before the day of the recommending conference rather than doing it at FCS, and bring it with you to the FCS recommending conference. This let’s you arrive at FCS as prepared and unstressed as possible.
When a parent attends the recommending conference, he or she normally will be sitting beside the other parent and across the table from the recommending counselor. This setting may be inappropriate. Under Family Code section 3181, where there has been a history of domestic violence between the parties, or where there is in effect an emergency no-contact order (e.g., a Domestic Violence Temporary Restraining Order), emergency Order for Removal (from a dwelling place), or emergency order for the minor child’s temporary custody and visitation, a party either alleging domestic violence in a written declaration or who is protected by one of these emergency orders, may request that the parties meet with the recommending counselor separately and at separate times. FCS must comply with the request and provide separate interviews of each parent (or any non-parent who has or is seeking custody or visitation) involved.
Please also note that a party may be sanctioned (fined) by the Court for failing to appear at the recommending conference because it cannot go forward without both parents (or any non-parent who has or is seeking custody or visitation) appearing. If a conflict arises and you cannot appear on the date and at the time it is scheduled, call FCS immediately to reschedule. The reason for the sanction is the overwhelming backlog of cases requiring recommending conferences, one for each parenting dispute (unless less than a year has passed since the last recommending conference). If the parent who fails to appear had given notice to FCS prior to the date of the recommending conference, two other parents might have used the time slot.
During the recommending conference, the recommending counselor may encourage the parents to accept a parenting plan that the recommending counselor believes is appropriate for the parties and child(ren). Hence, it is important for a parent to communicate why the parenting plan being recommended may not be in the best interest of the minor child(ren). A parent is not required to agree to a parenting plan proposed by the recommending counselor at the conference.
Sometimes the recommending counselor will ask that the minor child(ren) be brought in for an interview (or interview virtually (remotely)) after the parents have interviewed, and usually on another day. Whether an interview of the child(ren) takes place is solely at the discretion of the recommending counselor (or the judicial officer can order the interview). Often the reason for interviewing the child(ren) is to confirm an allegation from one of the parents about the preference of the child(ren) or to confirm specific circumstances or behavior from one or more family members.
The recommending counselor will ask a child subtle questions to test whether the child has been coached by a parent to give answers favoring that parent. If the recommending counselor senses the child has been coached, the written recommendation will reflect this and the child’s responses may and likely will be given less consideration by the judicial officer. Do not coach the child(ren).
At the courtroom hearing or trial, if the written recommendation is supported by the facts, the judicial officer generally will adopt the recommendation as the order of custody and visitation. Typically, however, the judicial officer makes a few minor changes (and sometimes substantial changes) to the recommendation based on argument by the parents or their attorneys if the parents are represented) before adopting the recommendation along with any changes as the Court’s order of custody and visitation.