If two parents cannot agree on a parenting plan, even after child-centered mediation, then the parties are going to have to appear in front of the Judge.
In non-recommending mediation counties, the Judge’s practices vary. Sometimes the Judge will make immediate custodial orders pending an evidentiary hearing; other times the Judge will delay until such time as an evidentiary hearing can take place.
In recommending mediation counties, the Judge will inquire of each party to see what, precisely, his or her position is with regard to the mediator’s recommendation. Often one party will agree and the other disagree, but sometimes the differences are minor. For instance, both may be in overall agreement but one thinks exchange times should be after school on Fridays instead of before school on Mondays as recommended, while the other parent’s problem with the recommendation is that he or she wants the sports equipment to travel with the child, which was omitted from the recommendation for some reason. In such a case the Court will spend a little time listening before adopting the mediator’s recommendation, with or without the requested modifications.
If the parties are far apart and there’s no middle ground, the Court will make orders adopting the recommendation in whole or in part, possibly modified, as temporary orders, and may set a return date. A return date is not automatic; if a party does not like the recommendation, he or she has a few different options – I am not going to discuss all options here because each has strengths and weaknesses depending on the facts of the case, and the facts of your case are best assessed by counsel. The option I would recommend the unhappy party follow, especially if he or she feels that a great injustice is occurring (the mediator and Court are operating based on the other side’s untruths or exaggerations, or that party has good evidence that he or she has not been able to get in front of the mediator or Court) would be to request an evidentiary hearing – after he or she has had time to get counsel.
Yes, you should have an attorney if things are going poorly in terms of custody and visitation in the early stages of a case. You have already been misperceived; a good attorney can “repackage” you and your case but that has to be done carefully and by getting competent, admissible, favorable evidence before the Court.
This is not to say that parties must agree in mediation. Sometimes agreeing to what the other side wants is the wrong thing to do. It depends on the facts of the case – and on the facts of the case as presented to the mediator and the Judge. That’s two different sets of facts in many cases. In Family Law cases, the Judge is one person both making the ruling (the Judge) and the finder of fact (the jury). In that dual role, Family Law Judges can only consider the facts presented to the Court in admissible form.
At Hartley, Maxwell, & Castellano, we work hard to make sure that we can prove, by admissible evidence, the allegations we put into our client’s paperwork. We take our ethical duty not to suborn perjury very seriously; similarly, our duty of diligence requires, as we see it, that we do that extra bit of mental work at the beginning of a case to decide how to prove our facts so the Court can consider them when making its decision. This ethical, evidence-oriented approach serves our clients well and allows us to hold our heads up, not just in the legal community, but in the community in which we live and practice.