A key part of due process, is to give the process that is due....essentially in Family Law mediation, there should be NO evidence submitted to mediator that is NOT also served upon the other party ahead of time, with a proof of service to all parties. Although we do not claim to know the family law in other states outside of California, it would seem quite prejudicial to (a) take evidence and then (b) never show it to opposing party, and then (3) throw out the evidence or give it back to the party who tendered it, and not have a record of the evidence--and THEN -- for Judge to use that evidence in awarding custody to the person who gave the evidence, by claiming the petitioning party did not overcome the presumption of joint custody? This would be the case since Judge rubber stamped the recommendation, which obviously relied upon the evidence never shown to the non custodial parent, which also caused the mediator to not even interview the minor child.
At long cause, judge ignored the argument of due process and ignoring the local rules. This was after custodial parent had caused the long cause hearing to drag on for months, because custodial claimed an attorney would be obtained but never got one; at each trial setting, custodial would choose a date that ended up being changed.
Nevertheless......the losing party then continued the vigil to gain custody notwithstanding the ridiculous ruling. Of course an appeal was out of the question because even if client wanted to engage an appeal, it would take so long that it would not be worth it.
Instead, client remained vigilant to actually follow the court's crummy order of several hours a week visitation, supervised. In meantime, the custodial parent continued to mess up on whatever that parent was supposed to do. About 6mo later, with documented evidence, the custodial parent decided to give up and just abandon the kids to the party wronged by the last order. Rather than attempting mediation again, and risking another bad mediator decision or biased Judge, the non custodial parent let the bad parent just hang her/himself. It was not surprising that the custodial parent had filed three TROs, none of which had stuck.
In our view, by allowing such a blatant evidentiary wrong to make a case for one parent, it was obvious that this was bias, as the non custodial parent even had a written letter from CPS stating that the children had been harmed by someone who was with the custodial parent and CPS was investigating (but not filing charges yet...) And, that the custodial parent was engaging in sexual acts in hotels in front of the minor children. But judge said, that was old news? WTH??!! The police wanted non custodial to do an ex parte. Oh yes, that would have fallen on deaf ears if the judge won't even look at a CPS letter or all the withhold notices from the District Attorney.
This goes to show that every case is usually different, and what might work normally in one case is not necessarily going to work in all cases.
NOTE: Attorney is very aware that 170.6 can be used, however this judge had heard the case prior to this attorney taking the case; judge taking testimony prior so essentially client was precluded from using that tactic. Attorney dropped out of case purposely to see if Judge would treat client differently; at the last motion, Judge actually ruled that CWS and an investigation would take place; it did take place and client was given 50/50 timeshare which he wanted.
