## Facts

- Thomas J. McLaughlin petitioned for dissolution of marriage and sought custody of the parties’ three minor children; Linda Lee McLaughlin sought joint legal custody and physical custody to herself.
- Under California Civil Code § 4607, the superior court ordered the parties to participate in prehearing mediation of custody and visitation issues.
- San Mateo County Superior Court maintained a policy requiring that, if the parties did not reach agreement in mediation, the mediator must make a custody/visitation recommendation to the court.
- The same policy barred the parties from cross-examining the mediator and restricted disclosure of mediation communications, citing confidentiality.
- McLaughlin moved for a protective order allowing a mediator recommendation only if he could cross-examine the mediator; the superior court denied the motion as inconsistent with its policy.
- McLaughlin sought a writ of prohibition to prevent the superior court from requiring mediation under a procedure permitting an uncross-examinable recommendation to be considered by the judge.
- After initial denial of writ relief, the California Supreme Court stayed the proceedings and directed consideration of the constitutional question.

## Issues

1. Whether a local court policy that permits or requires a custody mediator to provide a recommendation to the court, while prohibiting cross-examination of the mediator, violates due process when the court may consider the recommendation in deciding contested custody or visitation.

## Decision

- The Court of Appeal granted extraordinary writ relief.
- The court held the superior court’s policy was constitutionally invalid to the extent it allowed the court to receive and consider a mediator’s custody/visitation recommendation while barring cross-examination of the mediator.
- The court did not invalidate Civil Code § 4607; it invalidated the local implementation insofar as it deprived parties of procedural protections when recommendations could affect adjudication.
- The court indicated constitutionally permissible alternatives include permitting cross-examination when recommendations are considered, or refraining from considering the recommendation in contested determinations absent such protections.

## Legal Principles

- Due process requires a meaningful opportunity to challenge information that may materially influence a judicial decision affecting custody and visitation rights.
- When a mediator’s recommendation is used as an input to the court’s adjudicative decision-making in a contested custody matter, the mediator may not be insulated from cross-examination about the basis for the recommendation.
- Statutory authorization for local custody-mediation procedures does not permit local rules to override constitutional procedural guarantees.
- Confidentiality interests in mediation cannot justify using an untestable recommendation as a basis for a custody or visitation ruling.

## Conclusion

The court held that a custody-mediation scheme that allows the judge to consider a mediator’s recommendation while denying the parties the right to cross-examine the mediator violates due process, and it granted writ relief to prevent enforcement of the policy to that extent.


McLaughlin v. Superior Court, 140 Cal. App. 3d 473 (Cal. Ct. App. 1983)