Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question.
The mediator's recommendation is nothing more than that - - a recommendation. Thus, you can still argue against the recommendation and ask the judge to give you primary custody and to give the father visitation rights, etc. That's the only way to combat the recommendation - - you have to voice your objection and the reasons why you object.
If you can, it would be a good idea to consult with an attorney about trying to argue your position against the mediator's recommendation. If not, you can do this alone, but it is difficult.
the mediator said unless there is abuse, drugs or jailed, that this custoday arrangement is the law
That's not exactly true. The court is required to do whatever is in the child's best interest per Ca Fam §§ 3011, 3020, 3040, 3041.
In determining what is in the child's best interest, the court will consider whether there is abuse of the child, substance abuse of a parent and criminal history of parents. But, the court also considers many other factors such as the child's preference, home environments of both parents, family network of both parents, being separated from other siblings, etc.
Thus, there are other factors to consider. Here's a good article that outlines all of these issues:
Thank you....And may I ask, what can I do next...The mediator will present his opinion to the judge next month. Last, when I was in court, his attorney objected to every word I said.
I mentioned to the mediator that my 4 year old does not want to go to Dad's (no abuse), let alone for a 5 day stint, she is just used to being with me. So now the mediator says our child needs therapy because of supposedly seperation anxiety.
P.S. I cannot afford an attorney
There are legal aid offices and pro bono attorneys throughout the state that may be able to assist you. I would recommend that you contact the California State Bar Assn. (http://www.calbar.ca.gov/) and ask for help locating an attorney in your area.
When the mediator gives the report, you should be allowed to question her about the report, considerations made, whether or not she consulted what the child wanted, etc. Also, you can argue your position to the court and make your case for the court not to follow the mediator's recommendation.
I will say that this will be difficult because a mediator is supposed to be impartial and be acting in good faith. Thus, you'll have to be able to convince the judge tht the suggested arrangment will be detrimental to the well-being of the child and that it is not in the child's best interest because she's always lived with you and such a change could cause mental problems (anxiety, depression, etc.) for your child.
Again, if you can get help from a local attorney putting this together, it would certainly be easier for you to put your arguments into a good legal framework.
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