Every divorce is different, but many divorce cases are essentially bookend cases. There is a flurry of activity shortly after the petition is filed, a relatively long period of little activity, and another flurry of activity near the end.

About two weeks into the case, most judges hold temporary hearings to make interim decisions about custody, visitation, and support. Since stability is one of the factors in California’s best interests test, the party that wins custody at this stage is likely to keep it when the case is over, absent compelling evidence to the contrary. As the old saying goes, possession is nine-tenths of the law, and this saying usually applies in these cases.

After discovery is substantially complete, most cases go to mediation; in fact, most judges order mediation in contested cases. Statistically, about 95 percent of parties think that mediation will be a complete waste of time because they reason that if they could have “talked out” their problems, no one would have filed a court case. Yet, the vast majority of parties reach at least substantial agreement during mediation, and the three Cs have a lot to do with that outcome.

Temporary Hearing

As previously mentioned, the court will hold a temporary hearing after you initiate a divorce to make interim orders on various issues. Presenting custody and visitation evidence at the temporary hearing is challenging because there has been no discovery and therefore it is hard to predict what the other side will do. Moreover, the evidence should point to the best interests of the children and not attack the other parent as “unfit.” Some compelling evidence often includes:

• School Records: If the children’s grades improved when they moved in with Mother after the parents separated, a judge can and will conclude that the environment is a positive one.
• Witnesses: The best witnesses are those who have no particular interest in the case, such as school teachers or synagogue leaders. These witnesses should testify about what they saw, and keep conclusions to a minimum.
• Counselling Records: These items are not always available, but when they are, they are highly persuasive, because therapists can testify as fact witnesses and also give professional opinions.

The parties themselves must tell their stories as well, because if they do not do so, the judge may get the impression that the parents are fighting against each other instead of for their children.

Domestic violence allegations add an extra dimension to these proceedings. There is never an excuse for domestic violence, but there are different causes. Sometimes, there is so much tension in the house that one parent explodes, and in these cases, it’s normally best to keep the spouses physically separate and exchange the children in public places. Other times, one spouse has legitimate anger management or substance abuse issues, and in these cases, most judges order supervised or limited visitation and also order the alleged abuser to attend appropriate counseling sessions.

Child and spousal support are a little more mechanical, at least at this stage. The child support guideline amount is presumptively reasonable, and since there is so little financial evidence during temporary hearings, these presumptions nearly always control. Temporary spousal support is usually a balance between the obligee spouse’s economic need and the obligor spouse’s ability to pay.

Between the Bookends

After the temporary hearing, if the parties do not agree on custody and visitation, most judges order social studies. The procedure varies in different counties, but typically, the county child services office performs the investigation unless the parties agree on a private social study. The social worker typically reviews the file, talks to witnesses, visits the homes and workplaces of each parent, and then makes a recommendation as to custody, visitation, and any related matters.

Similarly, most judges appoint attorney ad litems to represent the children. The attorney interviews the children, determines their preferences for custody and visitation, speaks for the children during hearings, and makes a final report.

Generally, both the social worker’s report and attorney ad litem’s report loom large in the final order, because judges seldom go against the recommendations of neutral professionals.

Mediation and the Three Cs

Sometimes, the social study and ad litem’s report are inconclusive or contradictory; other times, parties want to bypass these reports and settle matters on their own terms. This is where mediation comes in.

Mediation promotes co-parenting, and this term is more than just a buzzword. Mediation is private, and therefore the emotional wounds of divorce, which almost always occur, heal a little faster. Furthermore, by taking control of their dispute, the parties hopefully learn that they can iron out disputes by themselves without resorting to court action, and communication always promotes co-parenting.

The lack of court action also gives parties more control over the outcome. That control increases voluntary compliance, because in many cases, parties who mediate a divorce themselves are less likely to return to court for subsequent enforcement actions.

Cost may be the biggest factor. Every case is different, but the Department of Justices estimates that mediation saves over $14 million a year in legal fees. That’s because mediation is much less time consuming and requires much les preparation time than a traditional trial.