McLaughlin v. Superior Court
140 Cal. App. 3d 473, 189 Cal. Rptr. 479, 1983 Cal. App. LEXIS 1448 (1983)
Rule of Law:
A local court rule that requires a child custody mediator to make a recommendation to the court when parties fail to agree, but prohibits cross-examination of the mediator regarding that recommendation, violates the parties' due process right to a fair trial.
Facts:
- Thomas J. McLaughlin and Linda Lee McLaughlin were married in 1969 and have three children.
- After Thomas filed for dissolution of marriage, he requested custody of the children.
- Linda responded, requesting 'joint legal' custody and 'physical custody' for herself.
- Thomas applied for an order granting him temporary custody of the children and reasonable visitation rights to Linda.
- Respondent superior court had an unwritten policy that required a child custody mediator to make a recommendation to the court if parties failed to agree in mediation proceedings, but prohibited cross-examination of the mediator by the parties, and also required the mediator not to state their reasons for the recommendation.
Procedural Posture:
- On May 17, 1982, Thomas J. McLaughlin filed a petition for dissolution of marriage in respondent superior court (the trial court).
- On June 10, Thomas applied to respondent superior court for an order granting temporary custody.
- The superior court issued an order to show cause setting the questions of temporary custody and visitation for a hearing on June 30.
- During the June 30 hearing, Thomas's counsel moved for a protective order which would prohibit the mediator from making a recommendation to the court unless Thomas were guaranteed the right to cross-examine the mediator.
- The superior court denied Thomas’s motion for a protective order, stating it would violate the court's existing policy.
- On July 6, the superior court filed a formal order directing mediation of the pending issues pursuant to Civil Code section 4607, subdivision (a), and denying Thomas’s motion for a protective order.
- On July 30, Thomas commenced the present proceeding by petitioning the Court of Appeal, First District, for a writ of prohibition to restrain the superior court from enforcing its order without a protective order, and requested a stay of mediation proceedings.
- On August 10, the Court of Appeal summarily denied Thomas's petition and request for a stay.
- On August 16, Thomas filed a petition for hearing in the California Supreme Court, again requesting a temporary stay of the mediation proceedings.
- On August 25, the California Supreme Court granted the petition for hearing, returned the cause to the Court of Appeal, First District, Division Four, with directions to issue an alternative writ, and ordered a previously granted stay of the August 24 hearing to remain in effect.
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Issue:
Is a local court policy constitutional if it requires a child custody mediator to make a recommendation to the court when parties fail to agree, but simultaneously prohibits the parties from cross-examining the mediator regarding that recommendation?
Opinions:
Majority - Rattigan, J.
No, a local court policy is not constitutional if it requires a child custody mediator to make a recommendation to the court when parties fail to agree, but simultaneously prohibits the parties from cross-examining the mediator regarding that recommendation. The court held that the respondent superior court’s policy, which permits the court to receive a significant recommendation on contested child custody and visitation issues but denies the parties the right to cross-examine its source, violates due process. Citing Fewel v. Fewel (1943), the court emphasized that denying the right to cross-examine a witness who testifies against a litigant is a denial of due process of law. Fewel established that investigator reports used for custody orders must be presented under oath, and the investigator must be available for cross-examination, as it is not their role to make private recommendations independent of evidence. This principle was reiterated in Long v. Long (1967) and In re George G. (1977). The court rejected the argument that due process was not required because only 'temporary' custody was involved, noting that Civil Code section 4607 does not use the word 'temporary' and any custody order is inherently modifiable. While Civil Code section 4607, subdivision (c), provides for confidential mediation proceedings, subdivision (e) states that the mediator 'may, consistent with local court rules,' render a recommendation. The court reconciled these statutory provisions by construing the permissive language of subdivision (e) to comport with due process requirements. Therefore, a mediator may only make a recommendation if the parties are guaranteed the right to cross-examine them.
Analysis:
This case significantly reinforces the fundamental due process right to cross-examine adverse witnesses, even in the specialized and often confidential context of family law mediation. It clarifies that statutory provisions for mediation confidentiality cannot entirely override constitutional protections when a mediator's recommendation directly influences a judicial decision affecting parental rights. The ruling ensures that court decisions regarding child custody are based on evidence that has been subject to adversarial testing, thereby preventing arbitrary judicial action founded on unchallenged private recommendations. This precedent guides future interpretations of mediation statutes to ensure their implementation aligns with constitutional safeguards, preventing disparate application of due process rights across different court jurisdictions.
