Revisiting the Impact of California's Mandatory Custody Mediation Program on Victims of Domestic Violence through a Feminist Positionality Lens

Authors

Lauri Boxer-Macomber

First Page

883

Document Type

Article

Abstract

In 1981, California became the first state in the country to enact mandatory child custody mediation legislation. Today, all family law cases, even those with histories or allegations of domestic violence, are subject to mediation. The legislative intent in promulgating the mandatory custody mediation program was noble. The program was designed to reduce animosity between parents, develop agreements that keep children's best interests paramount, and allow children close and continuing contact with both their parents. However, the question of whether mediation is an appropriate process to use in cases of domestic violence has been widely debated. A significant amount of the criticism on the mandatory custody mediation legislation was generated when California's mandatory mediation laws and programs were nascent and few measures had been taken to protect the victims of domestic violence engaging in the mediation process from further emotional and physical abuse. Among the original critics were a number of feminist legal scholars and advocates for the legal rights of victims of domestic violence? While opposition persists, a review of relevant state laws and Rules of Court show that California has made substantial progress in developing a mandatory custody mediation process that protects the rights of victims of domestic violence. This article employs the feminist legal methodology of positionality to analyze California's mandatory custody mediation program. It posits that the program offers victims of domestic violence a necessary alternative to the traditional dispute resolution system. It opines that a number of the harms originally assigned to the coupling of mandatory mediation and domestic violence in the context of the California Family Court system have been eliminated, mitigated, or should be reconsidered from a new standpoint. In addition, this article concedes that California's mandatory custody mediation program still poses certain threats to victims of domestic violence and advocates for changes in California's approach to the use of mediation in domestic violence cases. Part I of this article looks at the five categories of arguments against court-mandated mediation in family law cases with histories or allegations of domestic violence. Part II looks at California's legislative and judicial response to these concerns. Part III introduces positionality as a feminist method of legal analysis and applies it to an analysis of California's mandatory custody mediation program, and Part IV offers suggestions from a positional standpoint on the changes that should be made to California's mandatory custody mediation system.

Recommended Citation

Lauri Boxer-Macomber, Revisiting the Impact of California's Mandatory Custody Mediation Program on Victims of Domestic Violence through a Feminist Positionality Lens, 15 St. Thomas L. Rev. 883 (2003).
Available at: https://scholarship.stu.edu/stlr/vol15/iss4/6