Family Law Keyed to Weisbergback
Brief Fact Summary. Petitioner challenged the constitutionality of a local court rule that required a mediator to make a recommendation as to temporary custody when the parties were unable to reach an agreement but forbade the parties from cross-examining the mediator as to his reasons for the recommendation.
Synopsis of Rule of Law. A rule forbidding cross-examination of a mediator regarding his reasons for his recommendations for temporary child custody was unconstitutional.
Facts. California civil code requires prehearing mediation of child custody and visitation disputes in marital dissolution proceedings, providing that if the parties fail to agree in the proceedings the mediator may render a recommendation to the court as to the custody or visitation of the children involved. Respondent Superior Court had adopted a local court rule that requires the mediator to make a recommendation to the court if the parties fail to agree in the mediation proceedings, but prohibits cross-examination of the mediator by the parties. Petitioner Thomas McLaughlin and real party in interest Linda McLaughlin were married in 1969. They had three children, and upon divorce the wife requested joint legal custody as well as physical custody. Husband applied for temporary custody with visitation to the wife. At a hearing to show cause petitioner’s counsel recited his understanding that the pending issues of temporary custody and visitation were to be referred for mediati
on. He claimed that insofar as the court permits the mediator to make a recommendation for the court and bars the introduction of any testimony about what the parties tell him, the mediation procedure is unconstitutional as a denial of the right to cross-examine. On that ground counsel moved for a protective order permitting the mediation proceedings, but providing that if they did not result in agreement the mediator would be prohibited from making a recommendation unless petitioner was guaranteed the right to cross-examine the mediator. The court denied the motion on the ground that it would violate a policy the court had adopted pursuant to the civil code. Petitioner commenced the present proceeding by petitioning this Court for a writ of prohibition restraining respondent court from requiring petitioner to submit to the mediation without a protective order prohibiting the mediator from making a recommendation absent the right to cross-examine the mediator. The Court denied th
e petition, and petitioner appealed to the California Supreme Court. The Supreme Court returned the case to the court of appeals for a hearing on the issue of the constitutionality of the practice of mediator recommendations.
Issue. Does the court’s local rule permitting a recommendation by the mediator but forbidding cross-examination of the mediator violate constitutional due process?
Held. Yes, the husband is entitled to a writ of mandate directing the court to not receive a recommendation from the mediator as to any contested issue unless the court has first made a protective order guaranteeing the parties the rights to have the mediator testify and to cross-examine him concerning the recommendation unless said rights have been waived.
This court initially found the petition premature until it was clear that the parties had failed to agree resulting in a recommendation by the mediator. The Supreme Court disagreed, and the possibility of mootness is disregarded because the issue presented is one of broad public interest and is likely to recur.
The feature of respondent court’s policy prohibiting cross-examination of the mediator is consistent with the civil provision that the proceedings shall be confidential. The requirement of the mediator to not state his reasons for the recommendation to the court is consistent with the provision protecting the confidentiality of the parties’ communications to the mediator. Nonetheless, the policy, which permits the court to receive a significant recommendation on contested issues but denies the parties the right to cross-examine its source, is unconstitutional.
Respondent court contends that the policy is constitutionally permissible because only temporary child custody and visitation are involved. However, the word temporary does not appear in the civil code.
These conclusions are consistent with the duty to harmonize the subdivisions of the statute, and the disparities among local court rules have had the effect of guaranteeing due process in some superior courts but not in others.
Discussion. The Court found that a local rule requiring a mediator to make a recommendation as to temporary custody when the parties were unable to reach an agreement but forbidding the parties from cross-examining the mediator as to his reasons for the recommendation was unconstitutional.