Legal Question in Family Law in California
I REALIZE THAT MEDIATORS DON'T MAKE ORDERS THEY ONLY DO
RECOMMENDATIONS, they do however give the recommendations directly to the court, thus am seeking to vacate any orders participated in by the mediator and or all orders into effect that were based on her prior participation which were placed later at a time without her recommendations
. Attorneys Roach and Michael Hulshof
I made a motion to vacate, and i cited a particular rule of court, now the adverse party's attorney claims that I cited the incorrect law and it must be dropped. Is there anything I can do in court to change it? Like can I go into court and cite a different rule or law, and amend what rule I quoted in my pleading verbally in open court?
You both replied, I made the motion based on new discovered evidence of Mediator failing to disclose conflicts of interests which she has since recused without stating why. Her supervisor phoned me to inform me she recused based on conflicts of interests. This was the only reasons she supplied. But I know now, that it is because she knew my ex all along and even before the case began and took my case to harm me for him. I have a ton of witnesses and evidence, now I am attempting to vacate all orders which she participated in and any later orders placed based on her prior participated in orders. I made a points of authorities and cited in err 1286.2 in place of citing 5.210 (h) (10) + (12) and 170. i forgot the other 170.? plain and simple i got confused and filed the wrong draft.
As far as them making me pay, good luck, because of this case I devote all my time to it, I cannot function without my son, and have not been able to obtain any stable work environment. Thus I have not worked in 5 years and live with family.
I also just found out that his mothers best friends husband who has known him his whole life, and lived behind him in my town in the house on the other side of the fence, heard and saw abuse personally, through the back yard fense often while my ex and son lived on the other side. They were disgusted by my ex calling my son "Girl" and "Dummy" and other bad things and frequently heard the spankings and the tears for a few years when he lived there. They are sad about this being so close to the family but have confirmed it is very similar to how he grew up as a child. They thought it was a repeat of his childhood.
****I APOLOGIZE Mr. Anthony Roach att. but your response was unresponsive to the question, and did not apply.
Asked on 10/14/14, 5:14 pm
Anthony Roach
Law Office of Anthony A. Roach
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A mediator does not make orders. Any orders were made by the judge or by the parties entering into a stipulation. A mediator is simply a third party who is supposed to help the parties resolve the case on their own without court intervention.
With apologies Mr. Anthony Roach Esq., but I know what the mediators function is but unfortunately, she has an unfettered discretion as to what the court is reported and how they rubber stamp her recommendations. That is since the judge and her have been the closest of BFF's for over 20+ years. But what i am trying to know is and has been said many times, will the judge let me state the correct rule of court since I sent the incorrect one in my pleading?
3 Answers from Attorneys
They don't make recommendations to the court. They don't talk to the court at all. They make recommendations to the parties in mediation.
Mr. Roach is severely mistaken when it comes to Family Law. In many counties, including San Joaquin, the family law mediators make reports and recommendations to the court in the event the parties do not reach agreement, and overworked courts tend to defer to those reports and recommendations. So I understand your problem.
Turning to your question, some judges will allow argument on different facts or law than presented in the moving papers if the other side had adequate notice of the issues. Other judges strictly limit argument to issues and theories that are presented in the papers. I can't tell you what a particular judge in San Joaquin County will do.
You can see if the Family Law Facilitator can help you: http://www.sjcourts.org/self-help/pro-clinic Otherwise, out of caution, I would withdraw the defective motion and file a new motion, just to be sure the issues are heard.
And still no. Family Code section 3183 clearly points out that if the parties agree, the mediator may make recommendations as a "child custody recommending counselor." When that happens, the law is clear that the person is no longer a mediator and mediators do not make recommendations to the court.
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