Should Children Take Part in Divorce Mediation?

Child-inclusive mediation is generally described as a way of mediating a divorce in which a neutral child specialist meets with your children separately, listens to how the separation feels to them, and then shares a summary of their perspective with you and your spouse. The children are heard. They do not choose, and the two of you still make the decisions.

You may be a parent partway through a California divorce who wants your children's experience to count and also wants to keep your children out of the middle. This article explains what child-inclusive mediation is, how it is generally described as running, where it fits in California law, and how it differs from the custody mediation the court itself provides.

Key Takeaways

• If you are in immediate danger, call 911. Where there has been domestic violence, coercion or a protective order, safety comes first.
• Child-inclusive mediation is generally described as a private process in which a neutral child specialist hears the children separately and shares a summary of their perspective with the parents. The parents make the decisions.
• The court's custody mediation is separate. When custody, visitation or both appear on the face of a pleading to be contested, Family Code section 3170(a) provides that the court shall set the contested issues for mediation.
• Mediation does not remove the duty of financial disclosure, and a child support agreement is subject to the court's approval.

What Child-Inclusive Mediation Means

Divorce mediation itself has a legal definition. Under Evidence Code section 1115, mediation is "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement." The mediator is that neutral person. The mediator helps you and your spouse talk things through so you can reach an agreement you both accept. The mediator does not represent either of you, does not take a side, and does not decide anything for you.

Child-inclusive mediation adds a second neutral professional to that process. A child specialist is a professional who talks with children in ways that fit their age and stage. The specialist meets with the children apart from the parents. Then the specialist brings back a summary of the children's perspective: what they are noticing, what worries them, what matters to them. That summary describes the children's experience. It is not a set of instructions the parents must follow.

The child specialist is neutral in the same way the mediator is. The specialist does not represent the children, does not advocate for either parent, and does not make any decision. The two roles fit together without overlapping. The mediator manages the conversation between you and your spouse. The specialist gives the children a way into that conversation.

The term is easy to mix up with two others. Child-focused mediation means the parents discuss their children's needs in mediation, but the children do not take part directly. Child custody recommending counseling is the court's own custody mediation process, covered later in this article. Child-inclusive mediation is a private process. It has no connection to the court's Family Court Services or to any court program.

How the Process Works in Practice

One way the sequence can run is in five steps.

1. You and your spouse agree, with the mediator, to include a child specialist. This is a joint decision. The two of you also decide which children will take part.
2. The specialist meets with the children. These sessions are separate from the parents and are shaped to each child's age.
3. The specialist prepares a summary. It reflects the children's experience and concerns. It is not a custody recommendation.
4. The specialist shares that summary with you, your spouse, and the mediator.
5. You and your spouse use it as one input while you work out your parenting agreement in mediation.

The children's sessions are meant to be low-pressure. Children are not asked to choose between their parents. They are not asked for a preference that decides how things come out. The aim is understanding, not a vote.

The court's process is different. There, Family Code section 3183(a) allows the court's counselor to make a recommendation to the court, as explained below.

Private divorce mediation is generally confidential under Evidence Code section 1119. Evidence of anything said "for the purpose of, in the course of, or pursuant to, a mediation" or a mediation consultation is not admissible or subject to discovery, and disclosure of it cannot be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. Writings prepared for the mediation are protected the same way, and communications between participants "shall remain confidential." That protection has limits. It applies "except as otherwise provided" in the Evidence Code's mediation chapter, so it is not absolute. Evidence Code section 1117(b) also states that the chapter does not apply to the court's child custody mediation. The two processes run under different confidentiality rules.

Throughout, you and your spouse keep the decision-making authority. Your children's voice informs the agreement. It does not control it. A parenting agreement reached in mediation is not a court order on its own. Under Family Code section 3022, the court may make an order for the custody of a child. Our page on divorce mediation with children explains how parenting plans fit into the rest of the case.

Children's Voices and California Family Law

Family Code section 3042 sets out how a court hears a child in a custody case. If a child "is of sufficient age and capacity to reason so as to form an intelligent preference," the court "shall consider, and give due weight to," the child's wishes when it makes or changes a custody or visitation order. Family Code section 3011(a) addresses the child's best interest: in a proceeding described in section 3021, the court shall, among any other factors it finds relevant and consistent with section 3020, consider all of the following, including the health, safety, and welfare of the child and the nature and amount of contact with both parents.

Child-inclusive mediation is a different setting from a court hearing. The specialist's summary can help you both understand your children's experience, and it does not involve your child testifying or appearing in court.

The court has its own path when parents do not agree. Under Family Code section 3170(a), if a petition or other pleading to get or change a custody or visitation order shows that custody, visitation, or both are contested, "the court shall set the contested issues for mediation." Family Code section 3160 requires each superior court to make a mediator available. In San Diego County, the Superior Court of California, County of San Diego provides that mediation as child custody recommending counseling through its Family Court Services, under Family Code sections 3170 and 3183. The child custody mediation page covers that process in more detail.

Under Family Code section 3183(a), except as provided in section 3188, the court's mediator may, consistent with local court rules, submit a recommendation to the court about custody or visitation. The mediator must first give that recommendation in writing to the parties and their attorneys before the hearing. A mediator who is authorized to do this is called a child custody recommending counselor. Family Court Services calls this person the Family Court Counselor. According to the court's Family Court Services, if no agreement is reached, the counselor makes a recommendation and the court hearing goes forward. The judge decides.

Safety changes the picture. Domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council (Family Code section 3170(b)). Where there has been domestic violence, coercion, or a protective order, safety comes first. Mediating with the other spouse may not be appropriate at all. If you are in immediate danger, call 911.

What Child-Inclusive Mediation Can and Cannot Do

Clear expectations help, so here are both sides.

What it can do:

• Give children a channel to share their experience that fits their age.
• Help parents understand how the separation is actually landing on their children.
• Help parents build a parenting plan around their children's real needs.

What it cannot do:

• Replace the court's custody mediation. When a pleading shows custody or visitation is contested, section 3170 directs the court to set those issues for mediation.
• Override either parent's decision-making authority.
• Make a custody order by itself. Custody orders are made by the court.
• Guarantee any particular parenting arrangement.

It also does not touch your financial disclosure duties. Under Family Code section 2104(f), each spouse serves a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council that identifies each spouse's assets and liabilities, with a completed income and expense declaration provided along with it. The petitioner serves it with the petition or within 60 days of filing the petition. The respondent serves it with the response or within 60 days of filing the response. If the petitioner served the summons and petition by publication or posting under a court order, and the respondent files a response before a default judgment is entered, the petitioner has 30 days from that response. Either time period can be extended by written agreement of the parties or by court order.

Under Family Code section 2105(a), except by court order for good cause, each spouse serves a final declaration of disclosure and a current income and expense declaration. These are due before or at the time the spouses enter into an agreement resolving property or support issues other than temporary support. If the case goes to trial, they are due no later than 45 days before the first assigned trial date. The final declaration is not required if the spouses mutually waive it; that waiver must be executed under penalty of perjury in open court or by separate stipulation and include the representations Family Code section 2105(d) lists.

Child support has its own limits. Under Family Code section 4065(a), unless federal law prohibits it, parents may agree on a child support amount, but only subject to the court's approval. The court will not approve an amount below the guideline formula unless the parents declare all five of the following:

1. They are fully informed of their rights concerning child support.
2. The order is agreed to without coercion or duress.
3. The agreement is in the best interests of the children.
4. The children's needs will be adequately met by the agreed amount.
5. The right to support has not been assigned to the county, and no public assistance application is pending.

The child support mediation page walks through how those numbers come together.

Mediation may not be right for every family. Where there has been domestic violence, coercion, or a protective order, safety comes first, ahead of any process.

How Child-Inclusive Mediation Differs from the Court's Custody Process

The two processes can sound alike, but they are built differently.

The court's process. When custody or visitation is contested, section 3170 requires the court to set those issues for mediation. In San Diego County, that is child custody recommending counseling with Family Court Services. The Family Court Counselor may make a recommendation to the court under section 3183(a). The judge makes the decision. Under section 3170(a), the court shall set the contested issues for mediation once it appears on the face of a pleading that custody, visitation or both are contested.

Private child-inclusive mediation. A private mediator and a child specialist conduct it, and it is separate from the court's process. Couples in San Diego County use private mediation, and so do couples elsewhere in California who mediate online. Our overview of the San Diego divorce mediation process shows where these steps fall in a full case.

Confidentiality. Different rules apply to each. Evidence Code section 1119 covers private mediation communications. Evidence Code section 1117(b) states that the mediation confidentiality chapter does not apply to the court's child custody mediation under Family Code sections 3160 and following. Those court proceedings are instead "held in private and shall be confidential" under Family Code section 3177.

Even in private mediation, a signed written settlement agreement is not always protected. Under Evidence Code section 1123, a written settlement agreement signed by the settling parties can be admitted or disclosed if any of these is true:

• It says it is admissible or subject to disclosure.
• It says it is enforceable or binding, or words to that effect.
• All parties expressly agree to its disclosure, in writing or orally as section 1118 allows.
• It is used to show fraud, duress, or illegality relevant to an issue in dispute.

Simple Divorce Mediation is a private practice. It is not connected to the court, Family Court Services, or any government program. The California courts' self-help site describes the court's own services.

Schedule a Joint Mediation Consultation

Whether and how to bring your children's views into a divorce is a decision for you and your spouse. A consultation is a place to raise questions about mediation and your children.

To talk with Simple Divorce Mediation about divorce mediation, you and your spouse can call 858-330-1378 to schedule a joint mediation consultation.

About this article. Reviewed by Amy J. Lass, CA Bar No. 246779. Last updated 2026-10-08.