prior to mediation and had not been served on the other party prior to mediation.
A custody order was made on the 1stof December 2009, based on the recommendations of mediator Emelinda McGinnis (exhibit 3). Emelinda McGinnis referred to her own “observations “and the wishesoff Mr. Gross and recommended that a primary caregiver of two children should be restricted to seeingher children for 4 days out of a 30 day month and that before any changes in custody or parenting can bemade that the mother has to undergo A psychological evaluation.
Emelinda McGinnis ignored the domestic abuse and alcoholism of Timothy Gross and placed custodywith Mr. Gross despite the mother having sole custody during a restraining order where Mr. Gross hadno visitation to the minor children.
The meditation recommendation was adopted by Commissioner Best on the 1
of December 2009 andthe minutes of the custody order specify joint legal and joint physical custody to Timothy and ElenaGross,(exhibit 4). A 730 was struck for both parties, and Elena Gross was ordered to undergo a psychological evaluation even though Commissioner Best knew that Elena Gross had no income asCommissioner Best was concerned for the Cost of the evaluation for Timothy Gross. Commissioner Bestignored the history of Timothy Gross' substance abuse and domestic abuse (exhibit5 transcript of hearing) and there was no basis for the psychological evaluation except Plaintiff's hearsay statementsagainst Respondent. The current custody order specifies that a primary caregiver is limited to seeing theminor children 4 days out of a 30 day month and that a severely limited Holiday schedule listing hours islisted as :Easter Sunday, July 4th, Halloween, Thanksgiving Day, Christmas Eve and Christmas Day.The hours on those days are allocated based on odd and even years. There is no further holiday schedulespecified as Timothy Gross denies and frustrates all contact with the minor children.
The custody order was based on the recommendation of Emelinda McGinnis, where the proposed order was prepared and signed by mediator Emelinda McGinnnis (exhibit 4A).
Mediation confidentiality is codified in Evidence Code section 1115 et seq. This evidentiary restriction isnot limited to those communications made " 'in the course of ... mediation. [Citation.]' " (
Rojas v.Superior Court
(2004), 33 Cal.4th, 407, at p. 417; 15 Cal. Rptr 3rd 643.) Rather, as delineated inEvidence Code section 1119, the restriction applies to any written or oral communication made "for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation," as well as all"communications, negotiations, or settlement discussions by and between participants in the course of amediation or a mediation consultation ... ." (§ 1119.) Section 1119 also makes such evidence not subjectto discovery. Evidence Code section 1121 also places restrictions on the use of a mediator's reports,assessments, evaluations, recommendations, or findings by the mediator. These items may not besubmitted to a court or other adjudicative body absent consent of the parties in writing to the