Elkin's Family Law Task Force Address

Good Morning, my name is Cheri Bartow, and I've been a family law paralegal for the better part of the last 7 years and a party in a high conflict custody proceeding in Sonoma County since 2002. Thank you for listening to the public opinion, it's obvious you have truly been listening.

I have reviewed hundreds of recommendations prepared by Family Court Services mediators. It is currently unclear whether serving as an FCS mediator is considered the practice of psychology. Those holding a position which greatly effects the lives of children should be held to greater standards than is currently required. To qualify as a mediator in Sonoma County, it is required to be proficient in Microsoft Office programs, and desired, not required, to have a state license as an LCSW, MFT, or Clinical Psychologist. In my opinion, mediators are practicing psychology and should hold appropriate credentials, and be held accountable.

Family Code Section 3163 holds the local court responsible for responding to requests to change mediators. The code should be statewide and very clear as to how a party can go about expressing a grievance regarding the mediator. In the Psychological Experts in Divorce Actions by Ackerman & Kane, there is a section about complaints submitted to various licensing boards by litigants in family law proceedings. This speaks loudly to the fact that there is not a clear way for litigants to have their grievances addressed, and the only logical way to deal with it is to go to the licensing boards.

Family Code Section 3161 states the purposes of mediation as being to reduce acrimony, develop agreements, and effect settlement. Standards must be set to accomodate situations where those purposes are not reached. The California Rules of Court, 5.210 (d) requires each court to ensure a series of rules regarding mediation, but there is no enforcement. So the law can state that all these guidelines are to be followed, but my question is this: "OR WHAT?" Means of enforcement are not available to seek recourse; and if they are, I haven't been able to put my finger on what can be done about it. Because the Court holds that all mediators they employ are qualified and unbiased, the Court assumes there should never be a reason to change mediators.

The Court places so much weight on the recommendations submitted by mediators, that it is virtually impossible for litigants to exercise their right to due process and opportunity to be heard. Mediation is the beginning and the end of due process. In cases where an agreement is not reached, mediators should not be able to make recommendations to the court, since where no agreement has been reached, neither has the purpose of mediation been attained in accordance with the Family Code.

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Recommendations, at the very least, should be limited when an agreement is not reached and there should be very strict guidelines as to what the recommendation can include. Drastic changes to custody arrangements should not be allowed, for example, on the basis of mere accusations and absent of foundational evidence or probable cause.

90 minutes is not sufficient to determine what is in the best interest of a child. It may be enough time to effect settlement and develop agreements, but in no way should a child's life be effected by merely 90 minutes of a nerve racking, emotional meeting with a person who is not fully informed of ALL the relevant facts, and possibly not qualified.

To be a mediator is to be a psychologist. Let's only employ properly credentialed psychologists, verify those credentials, and find a place in the law for accountability. In doing so, we will be that much closer to materializing our Constitutional Rights.