NC Custody and Visitation Mediation Advisory Committee Meeting
10:00 AM – 1:00 PM
Chair: the Honorable Gary S. Cash, Chief District Court Judge, 28th Judicial District,
The Custody and Visitation Mediation Advisory Committee met on Friday, April 23,
2010 from 10:00 AM until 1:00 PM. Judge Gary Cash presided.
Other members present included: Chief Judge Alfred Kwasikpui, District 6B; Chief
Judge Jay Corpening, District 5; Billie Jo Garcia, Custody Mediation Program Manager;
Bryan Hurley, Custody Mediator from District 19 A/C; Nancy Butler, FCA, District 19B;
Cheryl Howell, UNC School of Government.
Invited Guests included Sandy Pearce, Division Administrator Court Programs and
Management Services of the AOC; DeShield Smith, Court Management Specialist
Family Court Program; Stephanie C. Smith, Custody Mediation Court Management
Specialist; Danielle Seal, Research Associate, AOC; Mildred Spearmen, Legislative
Liason, AOC; Kari Marvin, Custody Mediator from District 10, Wake County.
I. Welcome and Introductions
Judge Cash began the meeting by acknowledging the importance of meeting in person
and asking the members and guests to introduce themselves. Judge Cash welcomed
Cheryl Howell as Janet Mason’s replacement and informed the committee that
Lonnie Albright resigned from the committee due to serious illness. He thanked Janet
Mason and Lonnie Albright for their years of service to the advisory committee.
Billie Jo Garcia welcomed custody mediator Bryan Hurley as Adam Hurt’s
replacement on the committee. She also welcomed Nancy Butler, Family Court
Administrator, to her first in-person committee meeting.
II. Approval of Minutes from 12/12/09
The minutes were unanimously approved.
III. Update of Workload Study
Sandy Pearce reported on the workload study that the CMAC requested last year. Just
as the workload study for Family Court resulted in a formula for staffing current and
future Family Courts, the purpose of this workload study is to appropriately staff
Custody Mediation programs. Ms. Pearce shared the Custody Mediator and Judges’
Advisory Committee appointments made by Judge Smith. Members of the Custody
Mediation Work Group were selected to represent the diverse custody mediation
programs statewide. Ms. Pearce described the following process for the study:
Custody Mediator Work Group develops custody mediator essential job
NCOAC staff develops time study survey for custody mediators to complete
based on essential job function categories
NCAOC staff identify data needed for study
Judges’ Advisory Committee provides guidance for study process
NCAOC staff trains custody mediators to complete time study survey during
training on May 20, 2010
Custody mediators complete time study survey for 4 weeks
NCAOC staff develops case weights from time study survey and analyzes
data to develop staffing formula
Custody mediators review and discuss results of time study and recommend
Judges’ Advisory Committee discusses results of study and staffing resources
needs and recommends adjustments needed to finalize results
NCAOC staff finalizes district staff resource needs and presents to AOC
Director and Deputy Directors
IV. Custody Mediation and Permanency Mediation program updates
Ms. Garcia reported that a second round of site visits to custody mediation
programs across the state is nearly complete. The site visit reports now include a
section for judicial input and questions regarding case management. During the
site visit, Ms. Garcia or Ms. Smith uses an assessment tool for observing
mediation sessions and providing feedback to mediators. The assessment tool has
been well-received by mediators.
Ms. Garcia described the following training opportunities for custody mediators
Spring Training, May 21-22 with Dr. Paul Toriello, who has trained
extensively in Motivational Interviewing techniques.
2 Webex training sessions already held for custody mediators and 1 for
Regional meetings for custody mediators
New mediators meeting to be held May 19
Ms. Garcia shared the following with the committee - the Uniform Rules with the
changes to the training progression as previously approved by the CMAC, copies
of the Space and Safety Recommendations for the Child Custody and Visitation
Mediation Programs, draft copies of Best Practices for NC Custody Mediation
Program, and the new cover for the parenting booklet distributed to families
attending orientation to custody mediation.
Ms. Garcia described the process of allocating money for the districts that
currently have permanency mediation and those that want to start the program.
Guilford, Orange and Durham counties are all pursuing permanency mediation.
The committee discussed the problems that can occur when sending drafted
parenting agreements by email. Clients may cut and paste changes to the
document without informing the other party. Cheryl Howell described emailing
agreements as problematic for pro se clients since there are no attorneys
reviewing the documents. Attorneys use the draft when incorporating the
language into a consent order. Consent orders are currently impossible to track
since the clients have fulfilled their court obligations and there is no incentive for
attorneys to report this information to the custody mediation office. Ms. Garcia
stated that emailing parenting agreements is not recommended by the NCAOC.
Judge Cash asked for the status of the program in District 3B. Ms. Pearce
described AOC’s offer to be of assistance to the district, but there are pending
legal issues. There is community interest in the district for a mediation program.
V. Enforcement Clauses in Parenting Agreements
During a site visit, Ms. Garcia discovered an “enforcement clause” in a parenting
agreement which encourages law enforcement officers to assist parties in
complying with their parenting agreement. A mediator in another district called
Ms. Garcia wanting to use a similar clause in an agreement. Cheryl Howell
described the issue as a legal one with the problem being the language “order and
assist.” Ms. Howell described two opinions by the Court of Appeals that stated
that law enforcement does not have the authority to carry out such an order. Since
these opinions concerned cases in which a party lived out-of-state, there is still
some ambiguity about in-state situations.
After some discussion, Ms. Howell suggested that as a standard, mediators should
avoid including this language in parenting agreements entirely. They should
discuss this issue with their Chief District Court Judge. Judge Cash summarized
that as a best practice the custody mediation programs should not include an
enforcement clause and recommends that custody mediators be informed of this
stance in parenting agreements.
VI. Performance Evaluation Update
Stephanie Smith reported that the custody mediators completed written job
descriptions for Jay Biggs of Human Resources at AOC. This enables him to
better design a performance evaluation tool reflective of the activities custody
mediators perform. A committee of five mediators was organized by Stephanie
Smith and has met twice by conference call with Mr. Biggs to assist him with
designing job categories and their associated tasks for the evaluation tool. Ms.
Smith reported that mediation skills will be assessed during annual site visits by
the AOC Custody Mediation staff and evaluated in terms of whether or not
minimum requirements were met. The other job categories will be assessed by
each mediator’s supervisor.
VII. Waivers for Distance
Judge Keever requested that the Custody Mediation Advisory Committee discuss
the issue of waiving clients from mediation due to distance as stated in Uniform
Rule 50-13.1 (c). Some district court judges feel that since the program is
statewide and clients can attend orientations in other districts, there is no reason
for distance to be considered good cause to waive mediation. Judge Kwasikpui
pointed out that the out-of-town parent is generally traveling to the area to visit
the child and can attend mediation. Committee members discussed the issue and
agreed that mediators should consider ways to alert out-of-area clients to contact
their office so special arrangements can be made to accommodate their travel
needs. Judge Corpening made a motion to recommend to the Family Advisory
Committee that the word “shall” in the last sentence of Uniform Rule 50-13.1 (c)
be changed to “may,” making it consistent with the first sentence and clarifying
the rule. Judge Kwasikpui seconded the motion and it was unanimously approved.
VIII. Family Court Update
DeShield Smith reported that site visits to districts with Family Court are continuing on
schedule. The AOC Family Court staff is hosting a training event for family court staff
6/23 – 6/24 at the Judicial Center. John Greacen, a nationally recognized expert, will
discuss the difference between giving legal advice versus legal information, effective
case management, and managing courts during difficult economic times. The training
will include presentations, role plays, and time to network with colleagues.
IX. DV Specialist AOC
Ms. Garcia introduced Emily Hunt who was hired under a GCC grant to provide
technical assistance on domestic violence issues to court officials and staff. Emily
Hunt described the grant’s purpose to discover and develop best practices on
domestic violence issues that will help district court judges when facing cases
involving domestic violence. The Domestic Violence Advisory Committee, which
includes Cheryl Howell and Judge Cash, met and identified issues that should be
addressed in a best practice manual. Members of the Domestic Violence Advisory
Committee gave feedback by email on numerous issues regarding current district
court practices. After the best practices manual is completed, training will be
X. Technology and Mediation/Mediator Report
Judge Cash introduced the topic of technology and his interest in how new
technology is affecting mediation. Kari Marvin reported that webcam visits do not
arise often, if at all, in mediations in Wake County. Cell phones offer solutions as
well as difficulties for parents and cell phone use arises in mediation regularly.
Facebook and computer games are also discussed in mediation. Stephanie Smith
reported that mediators who answered an email query on this topic concurred with
Kari Marvin’s experience. Judge Cash expressed that these issues are good for
mediators to discuss with their Chief District Court Judge. Judge Cash suggested
it will be helpful to judges if best practices be developed on the uses of new
technology in mediating visitation.
Bryan Hurley shared the following issues which mediators around the state have
asked for clarification:
a) Legal standing for third parties – The Committee’s advice is that as a best
practice, if there is a genuine question as to legal standing, then the
mediator should refer the matter back to the court before mediation occurs
so that any agreement the parties are able to reach is actually valid.
b) Attorneys requesting to be released as attorney of record in the parenting
agreement – The Committee discussed the ease with which attorneys can
already withdraw from the case and see no reason for this to be included in
a parenting agreement.
c) The use of a parenting coordinator in a parenting agreement – The
Committee advised that this is a statutory issue. Parenting coordinators are
assigned by the judge and included in a court order. Language in a
parenting agreement may reflect the parties’ intention to seek the
assignment of a parenting coordinator through the courts, but it cannot
state that they will hire a parenting coordinator.
d) Confidentiality and subpoena to testify – Some mediators have been
subpoenaed to testify in court in the last year. The Committee reviewed
the exceptions to confidentiality for custody mediators. The Committee
suggested mediators seek the advice of their Chief District Court Judge if
they receive a subpoena. Judge Cash recommended that judges be
reminded about the confidentiality clause in the Uniform Rules.
e) Contempt Motions – Some districts send all contempt motions to
mediation first while others rarely send them to mediation. Judge Cash and
Judge Kwasikpui voiced their hope that when they return cases with
contempt motions to mediation, the parents get back on track with co-
parenting. Judge Corpening typically does not send contempt cases to
mediation in order to allow the mediator to focus on custody and
modification issues. Judge Cash recommends mediators and their Chief
District Court Judges discuss this issue to determine how they can help
NCAOC staff will inform custody mediators about the discussion of these issues.
The next meeting date is October 8, 2010 at 10:00 AM.
Meeting adjourned 1:00 PM on April 23, 2010.