Sunday, December 8, 2013

McLaughlin v. Superior Court case brief

McLaughlin v. Superior Court case brief summary
189 Cal. Rptr. 479 (1983)


CASE SYNOPSIS
Petitioner father sought a writ of prohibition to restrain respondent Superior Court of San Mateo County (California), which directed petitioner and real party in interest mother to submit their temporary custody dispute to mediation, pursuant to Cal. Civ. Code § 4607(a), and denied his motion for a protective order to prevent the mediator from making a recommendation to the court unless he was permitted to cross-examine the mediator.

CASE FACTS
As part of dissolution proceedings, petitioner father and real party in interest mother has a custody dispute, so respondent superior court directed the parties to submit their temporary custody dispute to mediation, pursuant to the Cal. Civil Code § 4607, and denied petitioner's motion for a protective order. When petitioner sought a writ of prohibition to retrain respondent, the court issued a peremptory writ of mandate, permitting the mediation proceedings, but directing respondent not to receive a recommendation from the mediator on any contested issued unless it first issued a protective order to guarantee the parties the right to have the mediator testify and to cross-examine on the recommendations, unless the parties waived this right.

DISCUSSION

  • The court held that the policy of not allowing cross-examination was constitutionally invalid, because it permitted respondent to receive a significant recommendation on contested issues but denied the parties the right to cross-examine its source. 
  • Further, the court concluded that § 4607(a), which provided that contested issues of child custody and visitation be referred to prehearing mediation proceedings, was mandatory.
CONCLUSION
The court issued a peremptory writ of mandate, permitting the custody mediation proceedings, but directing respondent superior court not to receive a recommendation from the mediator on any issue contested by petitioner father or real party in interest mother, unless a protective order had been made to guarantee the parties the right to have the mediator testify and to cross-examine on the recommendation, or the rights had been waived.


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