No other area of the law asks more of those who serve it than family law. Family law concerns the complexities and dynamics of our most personal relationships and how they are seen through the lens of a formal, adversarial legal system. Yet, judges, court mediators, investigators, and those who work within the family court dedicate themselves daily to listening to the stories of families who seek solutions and making what they consider to be the wisest, most thoughtful decisions for them. These decisions are often difficult, and sometimes agonizing. Frequently, these individuals do not know what happens within a family as a result of decisions they have made.

The bedrock upon which child custody and visitation law in California is built is the best interest of the children involved. The intention of this standard is to protect those who cannot protect themselves. Statutes codified in the California Family Code state specifically how the court must address the best interest of children in making custody and visitation determinations (Family Code Section 3011).

Court-connected mediators and evaluators, as well as mental health professionals appointed under Evidence Code 730, must adhere to and comply with specific standards of practice. These standards are set forth in California Rules of Court 5.220 for evaluators and 5.210 for mediators. For those private professionals working with parents and children involved in the legal process, familiarity with these procedures is extremely helpful. These rules essentially create a map of the territory of the mediation and evaluation process. A knowledge of this map makes the process become less formidable and mysterious.

The Department of Family Court Services houses the child custody mediators and investigators for the Orange County Superior Court. The staff of Family Court Services (FCS) consists of about forty mental health professionals, many of whom are licensed therapists, social workers, and clinical psychologists. Each of them must comply with minimum requirements for continuing education and training standards as set forth in the law governing this profession (Family Code Sections 1815 and 1816).
 
It is within the Department of FCS that children interface with the family court system. Within this Department, protocols and laws unite in making the best interest of children the highest priority. The functions of mediation and investigation have their own practice regarding children and the court. 
 
Parents who seek the services of court-connected mediation are instructed not to bring their children to the mediation session. The mediation process occurs between the mediator and the child’s biological parents. Step-parents and significant others are excluded. The mediator determines the structure and mediation process for each case based on what is most beneficial to the family. During the mediation appointment, parents are given the opportunity to discuss their relationship with their children as well as any further information that parents would like the mediator to know. It is the responsibility of the mediator to provide an environment for this dialogue to occur, while maintaining a balanced, neutral position. The purpose of mediation is to provide parents with an opportunity to participate in the creation of a parenting plan for their children on which they can both agree. The guiding principle of mediation is to continually bring the conversation back to the topic of the best interest of the child.
 
It is the mediator’s prerogative to request further mediation at a later date with the child present. Generally, a mediator will make this request when he or she decides that an interview with the child would strongly contribute to a workable parenting agreement. Most of the time the decision to include children is made when the children are older, as with teenagers who want to actively participate in decisions regarding their own lives. At no time will a mediator disclose information to parents which could in any way damage the parent-child relationship.
 
When judges decide they need further information regarding a case, they may order a child custody investigation. Children participate in the investigative process. Though there is no law dictating at what age children are to be interviewed, practice is generally about  five years or older. However, this determination is made on a case-by-case basis by the investigator. The professionals who perform child custody investigations are highly trained in this specialized function. They are acutely aware that after a certain age children understand that there is either a conflict between their parents or something “bad” has happened in their lives. These professionals realize that a child’s sensitivities are heightened as a result of being required to come to a strange place and talk to a stranger. They also know that children possess an innate sense that something integral to their lives could be at stake.
 
Partial investigations and domestic violence investigations are performed within the FCS offices. When children are brought for their appointment with the investigator, they are first signed into a secure playroom to wait until the investigator is ready to see them. An investigator speaks to a child without the parents present. If there is more then one child in the family, the investigator will decide whether to speak to the children one by one or together. This decision is made based on the nature of the case, age differences of the children, and their comfort level. Creating a welcoming environment within walls of the courthouse is challenging. Most of the staff expends extensive time and energy providing a space in their offices where children can feel comfortable. It is the goal of each staff member to make interviewed children feel cared for and safe. 
 
A mission of the family court is that parents who come there seeking solutions should feel heard and understood. Of course, many parents leave angry and disappointed; others are relieved and hopeful. This is the nature of the adversarial process itself. However, built into that adversarial process are provisions and protections for those who are the most vulnerable – our children.