The sixth appellate district has issued an analysis of temporary custody orders, in an unpublished opinion, citing that an adversarial hearing is required if there no is agreement reached at mediation and that an evidentiary hearing is required if there is no final judicial determination of custody. Some of us of course have been blessed with insane mediator recommendation orders that have been rubber stamped as the order of the court where there was no agreement at mediation or at any hearing, (in violation of CA evidence code section 1118-1121), and the other parent removed children immediately out of school without the consent of the parent with whom the children had been living and moved them out of the county, without a move away hearing, into a different county. As a result children slept on the floor for three days as there were no living arrangements for the children in any capacity and they were traumatically ripped from their primary attachment figure.
“Whenever a party seeks to “obtain . . . a temporary or permanent custody . . .
order” and custody is contested, the court is required to set the contested issues for
mediation. (Fam. Code, § 3170.) “If the custody . . . dispute is not set for mediation,
there can be no action taken concerning the disputed issues involving minors.”
(Hogoboom v. Superior Court (1996) 51 Cal.App.4th 653, 670.)
In the event the parties are unable to agree on custody following mediation, the
court must set the matter for an adversarial hearing. (Elkins v. Superior Court (2007) 41
Cal.4th 1337, 1360 (Elkins); Fam. Code, § 3185, subd. (a).) Where no final judicial
custody determination has been made, a full evidentiary hearing is mandatory. (Elkins,
supra, at p. 1360.) Family Code section 217 requires that live testimony be permitted at
such a hearing unless the parties stipulate otherwise or the court makes a finding of good
cause to refuse to receive live testimony”.